Rockford, 49 How. 117; De Bemer v. Drew, 57 Barb. 438; Gibbs v. Queens $433. Service of process, etc., to commence a spe- Bee L. 1855, ch. 279, 84 (3 Edm. 685), $434. Proof of service of summons, etc.; how made. -Proof of service, as prescribed in this article, must be made by affidavit, except as follows: If the service was made by the sheriff, it may be proved by his certificate thereof.(1) 2. If the defendant served is an adult, who has not been judicially declared to be incompetent to manage his affairs, the service may be proved by a written admission, signed by him, and either acknowledged by him, and certified in like manner as a deed to be recorded in the county, or accompanied with the affidavit of a person, other than the plaintiff, showing that the signature is genuine.(2) A certificate, admission, or affidavit of service of a summons, must state the time and place of service. A written admission of the service of a summons, or of a paper accompanying the same, imports, unless otherwise expressly stated therein, or otherwise plainly to be inferred from its contents, that a copy of the paper was delivered to the person signing the admission. (3) Substitute for portions of Co. Proc., 138. (1) Litchfield v. Burwell, How. 341; Thurston v. King, 1 Abb. 126; Morrell v. Kimball, 4 id. 352; 7Abb. 416. (2) Jones v. U. S. Slate Co., 16 How. 129; Litchfield v. BurFarmers' Loan Co. v. Dickson, 9 id. 61; s. c., 17 How. 477; Brien v. Casey, well, 5 id. 341; Trolan v. Fagan, 48 id. 240. (3) See Read v. French, 23 N.Y.285. ARTICLE SECOND. SUBSTITUTES FOR PERSONAL SERVICE IN SPECIAL CASES, BEC. 435. Order for service of summons from supreme court, when de fendant not found, etc. 436. How service must be made. 137. Papers to be filled; proof of service. 438. Cases in which service of summons by publication, etc., may be ordered. SEC. 439. Papers upon which order for publication may be made. 440. By whom order may be made; contents of order. 441. When publication must be commenced; when service deemed complete. 442. Papers to be filed; notice to defendant. 443. Id.; when service is made without the State. 444. Proof of service. 445. Defendant when allowed to defend. § 435. [Amended, 1880.] Order for service of sum mons from court of record, when defendant not found, etc. Where a summons is issued in any court of record, an order for the service thereof, upon a defendant resid ing within the State, may be made by the court, or a judge thereof, or the county judge of the county where the action is triable, upon satisfactory proof, by the affidavit of a person, not a party to the action, or by the return of the sheriff of the county where the defendant resides, that proper and diligent effort has been made to serve the summons upon the defendant, and that the place of his sojourn cannot be ascertained, or if he is within the State, that he avoids service, so that personal ser vice cannot be made. See § 638. Part of L. 1853, ch. 511 (4 Edm. 598). Simpson v. Burch, 6 T. & C.560; S. C., 4 Ilun, 315: Collins v. Ryan, 32 Barb. 648; Foot v. Harris, 2 Abb. 454; Skinnion v. Kelley, 18 N. Y. 355: Nagle v. Taggart, 4 Abb. N. C. 144, Sp. T.; Easton v. Malavezi, 7 Daly, 147; McCarthy v. McCarthy, 55 How. 418. aff'd, 16 Hun, 546; McCarthy v. McCarthy, 54 How. 97. § 436. How service must be made. The order must direct, that the service of the summons be made, by leaving a copy thereof, and of the order, at the resi dence of the defendant, with a person of proper age, if upon reasonable application, admittance can be ob tained, and such a person found who will receive it; or, if admittance cannot be so obtained, nor such a person found, by affixing the same to the outer or other door of the defendant's residence, and by depositing another copy thereof, properly inclosed in a post-paid wrapper addressed to him, at his place of residence, in the post. office at the place where he resides. Part of L. 1853, ch. 511, am'd. The § 437. Papers to be filed; proof of service. order, and the papers upon which it was granted, must be filed, and the service must be made, within ten days after the order is granted; otherwise the order becomes inoperative.(1) On filing an affidavit, showing service according to the order, the summons is deemed served, and the same proceedings may be taken thereupon, as if it had been served by publication, pursuant to an SERVICE OF SUMMONS. $438. order for that purpose, made as prescribed in the next (1) New. (2) From L. 1853, ch. 511. $438. [Amended 1879 and 1884.] Cases in which service of summons by publication, etc., may be ordered: An order directing the service of a summons upon a defendant, without the State, or by publication, may be made in either of the following cases: 1. Where the defendant to be served is a foreign corporation; or, being a natural person, is not a resident of the State; or where, after diligent inquiry, the defendant remains unknown to the plaintiff, or the plaintiff is unable to ascertain whether the defendant is or is not a resident of the State. (1) Where the defendant, being a resident of the State, has departed therefrom, with intent to defraud his creditors, or to therein, with like intent. (2) 3. Where the defendant, being an adult, and a resident of the than six months next before the granting of the order, and has not made a designation of a person, upon whom to serve a sumthirty of this act; or a designation so made no longer remains mons in his behalf, as prescribed in section four hundred and in force; or service upon the person so designated cannot be made within the State, after diligent effort. such property. 4. Where the complaint demands judgment annulling a marriage, or for a divorce, or a separation.(3) 5. Where the complaint demands judgment, that the defendant be excluded from a vested or contingent interest in, or lien such an interest or lien in favor of either party be enforced, upon, specific real or personal property within the State; or that regulated, defined, or limited; or otherwise affecting the title to 6. Where the defendant is a resident of the State. or a domestic corporation; and an attempt was made to commence the action against the defendant, as required in chapter fourth of this act, before the expiration of the limitation applicable thereto as fixed in that chapter; and the limitation would have expired, not been extended by the attempt to commence the action. within sixty days next preceding the application, if time had 7. Where the action is against the stockholders of a corporatiou, or joint-stock company, and is authorized by a law of the State, and the defendant is a stockholder thereof.(5) or subdivision second of section four hundred and twenty-six When a copy of the summons is required by subdivision first of this act, or by section four hundred and twenty-nine of this der, directing the service of a copy of the summons upon such act, to be delivered to a person other than the defendant, an or prescribed in this section, as if such person was the defendant person without the State, or by publication, may be made as with respect to such person, as is required in the next succeedin the action, and upon a verified complaint and the same proof ing section with respect to a defendant. And sections four hundred and forty to four hundred and forty-four, both inclusive, apply to the proceedings in like manner as if such person was a defendant. Substitute for Co. Proc., 135; Hallett v. Righters, 13 How. 43; Brisbane v. Peabody, 3 id. 109; Kendall v. Washburn, 14 id. 380; Cook v. Farren, 34 Barb. 95; Wortman v. Wortman, 17 Abb. 66; Fiske v. Anderson, 12 1d. 8; 33 Barb. 71; Peck v. Cork, 41 id. 549; Handley v. Quick, 47 How. 233; Brooklyn Trust Co. v. Bulmer, 49 N. Y. 84. (1) Lefferts v. Hoffman, It Abb. N. 8. 2, n.; Hurlbert v. Hope Mut. Ins. Co., 4 How. 278; Wortman v. Wortman, 17 Abb. 66. (2) Roche v. Ward, How. 416; Collins . Ryan, 33 Barb. 647; Towsley v. McDonald, 32 td. 604; Easterbrook . Easterbrook, 64 id. 421; Bixby . Smith, 5 T. & C. 279; s. c., 49 How. 50; 3 Hun, 60; Von Rhade v. Von Rhade, 2 T. & C. 491. (3) Easterbrock. Easterbrook, 64 Barb. 421. (4) Wheeter v. Scully, 50 N. Y. 667; Allen v. Malcolm, 12 Abb. N. S. 335; Steinle v. Bell, id. 171; Schwinger . Hickok, 53 N. Y. 280; Sandford v. White, 56 id. 359, (5) See L. 1869, ch. 157, I. § 439. [Amended, 1879.] Papers upon which order for publication may be made. The order must be founded upon a verified complaint, showing a sufficient cause of action against the defendant to be served, and proof by affidavit of the additional facts required by the last section; and also, where the application is made upon the ground that the defendant is a foreign corporation, or not a resident of the State, or in a case specified in subdivision fourth, fifth, or seventh of the last section, that the plaintiff has been or will be unable, with due diligence, to make personal service of the summons. See Co. Proc., 135. Kendall v. Washburn, 14 How. 380; Titus v. Relyea, 16 id. 371; s. c., 8 Abb. 177; Wattle v. Goble, 53 Barb. 517; Jacquerson v. Van Erben, 2 Abb. 315. § 440. [Amended, 1889.] By whom order may be made; contents of order. The order may be made by a judge of the court, or the county judge of the county where the action is triable. It must direct that service of the summons, upon the defendant named or described in the order, be made by publication thereof in two newspapers, designated in the order as most likely to give notice to the defendant, for a specified time, which the judge deems reasonable, not less than once a week for six successive weeks; or, at the option of the plaintiff, by service of the summons, and of a copy of the com plaint and order, without the State, upon the defendant personally, and if he is an infant under the age of fourteen years, also upon the person with whom he is sojourning; or, if the defendant is a corporation, upon an officer thereof, specified in section four hundred and thirty-one or four hundred and thirty-two of this act. It must also contain, either a direction that, on or before the day of the first publication, the plaintiff deposit in a specified post-office, one or more sets of copies of the summons, complaint, and order, each contained in a Substitute for part of 135 of Co. Proc. (1) Oicott v. Bobinson, 21 N. 248. 8441. [Amended, 1877.] When publication must be commenced; when service deemed complete. The first publication in each newspaper designated in the order, or the service upon the defendant without the State, must be made within three months after the order is granted. For the purpose of reckoning the time within which the defendant must appear or answer, service by publication is complete upon the day of the last publication, pursuant to the order; and service made without the State is complete upon the expiration thereafter of a time equal to that prescribed publication. Balmer, 49 N. Y. 84; Kerner v. Leonard, 15 Abb. N. S. 96; Richardson Co. Proc., substitute for part of 135 and 137. Brooklyn Trust Co. v. 1. Bates, 23 How. 516; Brod v. Heymann, 3 Abb. N. S. 396. to defendant.-Where service is made by publication, 442. [Amended, 1877.] Papers to be filed; notice the summons, complaint, and order, and the papers clerk, on or before the day of the first publication; and apon which the order was inade, must be filed with the a notice, subscribed by the plaintiff's attorney, and directed only to the defendant or defendants to be thus being properly filled up, must be subjoined to, and pub. served, substantially in the following form, the blanks lished with the summons: See post, § 1541, 1774. you, by publication, pursuant to an order of The foregoing summons is served upon (naming the judge and his official title), "dated the "To day of 18., and filed with the com plaint, in the office of the clerk of Substitute for Co. Proc., part of 2 135. at Kendall v. Washburn, 14 How 300; Titus v. Belyea, 16 id. 371; Waffle v. Goble, 53 Barb. 517; Jacque 30. v. Van Erben, 2 Abb. 315. |