§ 130.] SUMMONS. filed. The petition was filed in time, the plaintiff not having taken any steps to obtain 6. Q. Can a motion to dismiss the complaint be made, if the complaint is not served within twenty days after demand? A. In Baker agt. Curtiss, 7 How., 479, Special Term, February, 1853, MARVIN, J., it was decided, that where the action is commenced by service of the summons without the complaint, and the plaintiff neglects to serve a copy of the complaint within twenty days after the demand, it is proper for defendant to move to dismiss the complaint. If the motion is granted, the action is discontinued or dismissed. The motion is founded on section 274 of the Code. After notice of such a motion is served, and a copy of the complaint subsequently served on the defendant, the latter is not bound to return it immediately, or be deemed to have waived the right to make his motion. The Judge stated, that it is objected by the plaintiff that the Code does not authorize this motion (§ 274); that the motion should have been for judgment of discontinuance, under the 2d R. S., 350, (§§ 25, 26), which provisions of the Revised Statutes, it is claimed, are not repealed: and sections 469, 470, 471 of the Code, and the 90th rule are referred to. By section 274 of the Code, the court may dismiss the complaint with costs, in favor of one or more defendants, in case of unreasonable neglect on the part of the plaintiff to serve the summous on the other defendants, or to proceed in the cause against the defendant or defendants served. The motion was proper under this provision of the Code. A copy of the complaint must be served within twenty days after demand (Code, § 130). The defendant's attorney is not bound to accept a copy of the complaint after the time has elapsed (Mandeville agt. Winne, 5 How. Pr. R., 461). The statute has fixed the time within which the plaintiff must serve a copy of the complaint after demand, and if he fails to serve the copy in time, we must regard it in contemplation of section 274, as an unreasonable neglect to proceed in the cause against the defendant who has been served with the sumthe language of that section, to dismiss the complaint; mons, and the motion may be, though in point of fact, no complaint may have been made. If the motion is granted, (See Colvin agt. Bragden, 5 How. Pr. R., the action will be discontinued or dismissed. 124). The defendant's attorney had given notice of the motion before the copy complaint was served upon him, and it seems to me that the plaintiff's attorney should have ascertained clearly, under these circumstances, whether the defendant's attorney intended to accept the complaint absolutely, and waive his motion, and there should have been an It appears that the defendant's attorney did not at the time understanding as to costs. It may well be that he the complaint was served, say anything about the notice of this motion, which had been left in the office of the plaintiff's attorney a few hours before. supposed the plaintiff's attorney had seen the notice, and that it was quite unnessary for him to speak of it. It is stated in an opposing affidavit, that he did not refuse to receive nor offer to return the complaint (at the time of service), but it does not appear how mach time the party serving the paper spent in the office, or whether the defendant's attorney examined the paper and knew then that it was a copy of the complaint in this cause. I am clearly of the opinion that the facts disclosed do not show an express waiver of the right to pursue the motion. I should have been better satisfied with the practice of the defendant's attorney, if he had promptly returned the complaint, or given notice that he should disregard it, especially as he intended, as now appears, to hold the plaintiff to the strict requirement of the statute to serve a copy of the complaint within the twenty days. Motion granted, with $5 costs of this motion, with leave to the plaintiff to serve a copy of the complaint within five days, upon payment of such costs. In Foster agt. Wood, 30 How,, 284, 1 Abb., N. S., 150,ˆ Ñ. Y. Common Pleas, General Term, February, 1866, DALY, F. J., it was decided, that where a summons in the form prescribed by law for the case in which a copy of the complaint is served with it, is served without the complaint, and does not state where the complaint will be filed, the omission does not render the judgment void. It is an irregularity, of which advantage should have been taken by motion. And the Judge said: The omission to serve with the summons a copy of the complaint, or no complaint having been served, to state in the summons where it was or would be filed, did not render the judgment void. It was an irregularity of which advantage could be taken by motion, for the court acquired jurisdiction by the service of the summons, and a defect like this in the form of it was amendable. (2 R. S., 424; Hallett agt. Righter, 13 How., 43; Pignolet agt. Daveau, 2 Hilt., 584; Martin agt. Kanouse, 2 Abb., 393; Cook agt. Dickerson, 1 Duer, 679; Keeler ugt. Betts, 3 Code R., 183; Bronson agt. Earl, 17 Johns., 64; Tidd's Practice, 130, 1032, 9th Lond. ed.; Graham's Practice, 132, 665, 2d ed.) It was not a matter of which these defendants could avail themselves in this proceeding, and afforded no reason for dismissing it. 7. Q. In what cases must a copy complaint be served to prevent or procure a default? A. In Van Pelt agt. Boyer, 7 How., 325, Special Term, May, 1852, MORSE, J., it was decided, that, where defendant was served with summons, and subsequently with an order of arrest and copy complaint at the same time, but was discharged from the order because attending court as a witness; and no return of the service of the order or complaint having been made, and the defendant not having appeared, a judgment entered by plaintiff for want of an answer twenty days after the service of the summons, but within twenty days from the service of the complaint, held regular. And the Judge stated, I do not think the defendant can be considered as having given notice of appearance under section 130 of the Code; and if he had not. he had not entitled himself either to a copy of the complaint or any further time to answer. The service of a copy of the complaint with the papers accompanying the order of arrest was the act of the plaintiff, and can not be considered as evidence of an intention to appear in the action on the part of the defendant. The judgment was regular, but as the defendant swears to merits, he may be let in on payment of $10 costs of this motion, and the costs of entering and docketing the judgment and issuing and serving the execution. The plaintiff must be at liberty to proceed upon his judgment and execution until sufficient money to satisfy the same comes into the hands of the sheriff, receiver, or other officer of the court, and then to be subject to the further order of the court. (On appeal to the general term, the decision of the special term was affirmed, with $10 costs, at Poughkeepsie, October 29, 1852. In Johnson agt. Bryan, 5 How., 355, Special Term, Nov., 1850, WELLES, J., it was decided, that, where a summons is served stating that the complaint will be filed in the clerk's office of a certain county, as required by this section, a motion for judgment in favor of the defendant, for not serving a copy of the complaint, must be made in that district, or a county adjoining the one in which it is stated that the complaint will be filed in another district. And the Judge said that, by section 401 of the Code, motions must be made within the district in which the action is triable, &c. Section 142 provides that the complaint shall contain the title of the cause, specifying the name of the court in which the action is brought and the name of the county in which the plaintiff desires the trial to be had, &c. By section 130, in case the complaint be not served with the summons, the latter shall state where the former will be filed; and if the defendant within ten days make demand in writing of a copy of the complaint specifying a place within the state where it may be served, a copy thereof shall be served accordingly, &c. By rule 3 of this court, papers are required to be filed in the office of the clerk of the county specified in the complaint as the place of trial. In this case no copy of a complaint was served with the summous, nor has it since been served. It does not appear whether it has yet been filed. The summons stated that it would be filed with the clerk of Oneida county. If it has been filed, it must have been there or it would have been irregular, because the summons stated it would be filed there, which was necessary by 130. I think it cannot be maintained that this motion could be regularly made either in the fifth or sixth district, at the option of the defendant. If that were so, by the same rule it could be made anywhere in the state, at the defendant's election. There is no good reason why it could be made in Monroe county any more than in Chautauque, St. Lawrence or New York. I incline to the opinion that the motion should have been made in the fifth district, unless Oneida county adjoins some other district, in which case it may be made in a county in such other district adjoining Oneida (§ 401). When the motion shall be so made, the plaintiff will not be allowed to object that it does not appear where the action was triable, as it would be presumed that when the complaint should be filed in Oneida county, it would specify that county as the place of trial. The motion is therefore denied; but as the question is new, and involves a construction of various provisions of the Code, no costs are allowed for opposing. 8. Q. What is a sufficient designation of the place requiring a copy complaint and other papers to be served? A. In Walsh agt. Kursheedt, 8 Abb., 418, N. Y. Com. Pleas, Special Term, Jan. 1859, BRADY, J., it was decided, that a notice of appearance which requires "all papers" in the action to be served on the defendant's attorney, and specifying a place for the service, is a sufficient demand of service of a copy of the complaint. And the COURT said the statute does not require the demand of a copy of the complaint to be made by any particular form of expression; and if, therefore, it be made without reference to the language employed, the defendant secures all the rights consequent thereupon. To demand is to claim, to ask for with authority; and to require is to demand, to ask a thing as of a right. The words are synonymous. When the defendant requires all papers to be served upon him, it is demanding that all papers should be so served. A complaint is a paper in a cause which is necessary to the plaintiff's success, and one which should be served on the defendant, if he either demand or require it. This is both within the spirit and letter of the statute. In Ferris agt. Soley and others, 23 How., 422, Special Term, Sept., 1862, BARNARD, J., it was decided, that, where the defendant's attorney served with his notice of appearance a demand of this kind: "And I require that all papers be served on me at my office, No. 11 Wall Street, in the city of New York," held that under such a demand the defendant was entitled to have a copy of the complaint served on him. And a judgment entered by the plaintiff without such service, was set aside as irregular. And the Judge said that the defendant, under the demand served by him, was entitled to have a copy of the complaint served on him, unless a waiver in writing is shown. The judgment, consequently, is irregular, and must be set aside. This the defendant is entitled to as a matter of right. The dismissal of the complaint, however, is a matter resting in the discretion of the court, and if a reasonable excuse for not having served it is shown, time within which to serve it is always granted. The plaintiff has shown a reasonable excuse in this case. The motion to discharge from arrest, by reason of the nou-service of the complaint, falls with the extension of the time to make the service. The ground on which the discharge is granted in such cases is that of laches in plaintiff. The excuse of the laches for not serving the complaint should stand effectual as a bar to all motions based on that laches. As neither party has wholly succeeded on this motion, no costs are given. 9. Q. What is the effect of an omission by defendant to demand a copy of complaint within ten days after being served with the summons ? A. In Engs agt. Overing, 2 Code R.,79, Special Term, Dec., 1849, EDMONDS, J., it was decided, that, where a party is served with a summons without any copy of the complaint under this section of the Code, and he omits to demand a copy of the complaint within ten days after being served with the summons, the plaintiff's attorney is justified in refusing him a copy when demanded, after the ten days has elapsed; and where he afterwards moves for an order to have a copy of the complaint served, he will be compelled to pay costs of the motion. And the Judge said that, as the defendant did not demand the copy of the complaint within ten days, the plaintiff's attorney was justified in refusing him a copy when demanded, after the ten days had elapsed. The defendant complains that the complaint has never been filed, but the plaintiff is at liberty to file the complaint when he pleases; probably in such cases it will be seldom voluntarily filed unto the entry of judgment. I shall make an order for the plaintiff's attorney to furnish a copy of the complaint; I give the defendant two days to answer. The defendant must pay the costs of this motion. I cannot require the defendant to produce an affidavit of merits, because the complaint never having been served or filed, he has had no opportunity to ascertain the nature of the cause of action; if the complaint had been filed before the motion was made, then I should have required the defendant to swear to merits. In Bennett agt. Dellicker, 3 Code R., 117, General Term, Sept., 1850, N. Y. Com. Pleas, WOODRUFF, J., it was decided, that, where a summons is served without any copy of the complaint, the plaintiff is not bound to serve a copy of the complaint, unless the defendant demand same within ten days after the service of the summons. The court may, in its discretion, order the plaintiff to serve a copy of the complaint in cases where the defendant has omitted to demand same within ten days after the service of the summons. And the Judge said that the same order, however, contained a further distinct direction, as follows: Let the plaintiff within said five days serve a copy of said complaint on the defendant's attorney, or show cause at chambers on Saturday, the first day of June, why the same should not be done." Upon the return of this order to show cause, it was held that the plaintiff ought not to be required to serve the defendant's attorney with a copy of the complaint, and an order denying the motion was granted with costs, from which order this appeal is now brought. Experience has taught us that much inconvenience and embarrassment has resulted from that provision of the Code which dispenses with the filing of a complaint when a summons is issued. Defendants, in the belief that they have, according to the notice contained in the summons, twenty days in which to take needful steps to prevent a judgment, constantly deter any action until the twenty days are about to expire, when they or their attorneys find, on inquiry, that no complaint has been filed, and they are utterly destitute of the information necessary to enable them to answer, and without the means of obtaining that information, except upon a special application to the court to compel the plaintiff to file his summons and complaint, and thereupon it becomes necessary to obtain a further order giving time to answer. In general, we cannot say that a defendant is in fault in thus deferring the employment of an attorney or giving notice of appearance-it is excusable in him not to know that if he does not ask for a copy of the complaint within ten days the plaintiff will not be bound to inform him of what he complains. And we should not regret it if the section 130 now in question would admit of the construction for which the appellant contends, viz., that the plaintiff is bound to serve a copy of the com plaint, if demanded in writing, within ten days after it is filed. If a plaintiff chooses to issue his summons without either filing or serving his complaint, it would be no just ground of complaint if he were subjected to some additional delay in consequence. And I may add that it would in general, if not always, be far more worthy the proper character of the profession, if in a spirit of courtesy which the commonest civility demands, the plaintiff's attorney would at once and whenever requested, furnish to his brother attorney the complaint which exhibits his client's case. Rules must be made and must be enforced for the regulation and control of those who act well on compulsion only; but it is to be regretted that when the dictates of fairness, politeness, and good breeding would, if observed, be sufficient, other rules should be necessary. Neverthe less, upon a careful examination of section 130, I am satisfied that its true construction is, that nothing therein compels the plaintiff to serve a copy of the complaint, unless it is demanded within ten days after the service of the summions. But we have no doubt whatever that the court may require it served if they think proper. There may be cases in which, under special circumstances, the court may and ought to order such a service. I find nothing in the Code which is inconsistent with the exercise of such a power. But if this be so, its exercise is discretionary, and there is nothing in this particular case to call for any interference with the order made below. The defendant had twenty days after the filing of the complaint, to answer, if he had a defense to interpose. In McKay agt. Laidlaw & Pond, 13 How., 129, Special Term, Oct., 1855, MITCHELL, J., it was decided, that, where a defendant has been served by publication of the suminons, and the mailing a copy of the summons and complaint, addressed to him, he is not entitled as of course to demand a copy of the complaint to be served upon him, and to have twenty days to answer after compliance with the demand. The only case in which the Code expressly authorizes a defendant to demand a copy of the complaint, and gives him twenty days thereafter to answer it, is where there has been personal service of the summons, but no copy of the complaint has been served with it. In other cases the defendant may, on application to a judge, obtain time to answer, and if to the court, also an order to have a copy of the complaint delivered to him. 10. Q. What is the effect of an irregular statement in the summons as to the filing of the complaint? A. In Hart agt. Kremer, 2 Code R., 50, Special Term, Nov., 1849, HURLBUT, J., it was decided, that, where a summons served under this section of the Code stated that a "copy" of the complaint would be filed, instead of stating that "the complaint" would be filed, and judgment was entered by default for want of an answer, the mistake in the summons offered no ground for impeaching the judgment. And the Judge said that there is nothing in the objection to the form of the summons, and if there had been, it would be too late to urge it after allowing judgment. The defendant does not show that he was misled by the mistake in the summons. In Keeler agt. Betts, 3 Code R., 183, Special Term, Jan., 1851, N. Y. Common Pleas, WOODRUFF, J., it was decided, that, where the complaint is filed, and no copy is served with the summons, and the summons, instead of stating where the compaint is filed. states that a copy of the complaint "is annexed," the summons is irregular, and may be set aside on motion; but such a summons is not a nullity, and if the defect can be reme died without doing injustice, and especially if no injury has been occasioned by the omission, it is the duty of the court to disregard it. or allow an amendment. And the Judge said, that, if the question were to be determined solely by those sections of the statute which prescribe what shall be inserted in a summons, I should hesitate in holding that any paper is a summons which does not, in all things, conform to their directions. But even then it might well be said that the directions to notify the defendant where the complaint would be filed, is directory in such sense that the summons is complete, in all the indispenable requisites to constitute a summons, in the proper meaning of that term, without the additional notice, and although imperfect, not void. But, under the subsequent provisions of the Code, authorizing the court to amend any proceeding, or to disregard any defects not affecting the substantial rights of the party, it does not appear to me doubtful that the omission may be supplied. So far from doing injustice in this case by allowing an amendment, it would rather be unjust to refuse it, when the defendant has in no manner been misled nor deprived of any defense which would have availed him if the summons had been in all respects regular, and the plaintiff will be defeated by the statute of limitations, which has now barred a new suit. In Pignolet agt. Duveau, 2 Hilt., 584, Special Term, March, 1860, DALY, J., it was decided, that a summons is irregular which, at the time of service, is unaccompanied by a complaint, and does not state where the complaint is or will be filed. The Judge said that the summons was irregular. It was not accompanied by the service of a copy of the complaint, and did not state that the complaint was, or when it would be, filed. The letter of Morange was a notice of appearance. (Baxter agt. Arnold, 9 How., 445; Quick agt. Merrill, 3 Cai., 133.) It was signed by him as the defendant's attorney, and informed the plaintiff's attorney that he, Morange, would waive the irregularity in the summons, and accept, as the defendant's attorney, the service of a copy of the complaint. The proper course for the plaintiff's attorney, then, was to serve a copy of the complaint upon Morange, and upon such service being made, the defendant would have been precluded from taking any advantage of the defect in the summons. This the plaintiff's attorney did not do, but offered to serve a copy of the complaint upon Morange if he would sign a formal notice of retainer by and appearance for the defendant, together with a written demand that a copy of the complaint should be served upon him, as the defendant's attorney. This Morange refused to do; and certainly this one formality was unnecessary, as Morange had already given notice of appearance, and demanded, in writing, a copy of the complaint. Upon this refusal the plaintiff's attorney served a notice upon Morange, requiring him to disregard the summons served upon the defendant. This was, in effect, a notice of the discontinuance of the suit, which was inoperative without the payment of costs, as the defendant had appeared by attorney. (McKenster agt. Van Zandt, 1 Wend., 13.) The defendant's attorney now moves to set the summons aside for the irregularity. Motion granted, with costs. What is the result of the decisions under this section? 1. (1 Q.) After the lapse of a reasonable time, after demand, for the service of a copy of the complaint, pursuant to this section, if not served, the defendant may move for judgment dismissing plaintiff's complaint. 2. The complaint may be dismissed under section 274 of the Code, for the neglect of the plaintiff to proceed in the cause, pursuant to statute, against the defendant served with summons. 3. After demand by defendant of a copy complaint, under this section, the plaintiff should be allowed twenty days to serve the same. 4. Twenty days is a reasonable time to be allowed for the service of a complaint after demand under this section. 5. Where the defendant's attorney had served two notices of retainer, and demanded copy complaint at different times upon the plaintiff's attorney (for several defendants) it was only necessary to wait until the twenty days from the date of service of the first, expired before moving to dismiss the complaint. 6. In ordinary cases the practice as settled, allows twenty days for service of copy of complaint. 7. The above decisions were all made under this section as it stood previous to the amendment of 1851, but are useful as showing the views of the courts on the question of diligence in serving papers where no time is specified. 8. (4.) The time to serve a copy of the complaint, may be extended by a judge under section 405. 9. An order giving the plaintiff further time to serve a copy of his complaint, cannot be granted ex parte, after the time for serving it has expired. 10. An order giving the plaintiff further time to serve a copy of his complaint, must be obtained on notice or an order to show cause, served on defendant. 11. (5 Q.) A defendant must answer the complaint within the twenty days, prescribed by this section. 12. A defendant has not a right to answer after the expiration of the twenty days, and before judgment is actually taken. |