he is advised by his counsel, A. B., &c., and as he believes truly," was held insufficient. And see Richards v. Sweetzer (3 How. 413), where it was held that an affidavit that the defendant had stated “the facts of his defense," instead of "the case," was insufficient; and again, in Ellis v. Jones (6 How. 296), an affidavit which stated that the defendant had stated "his case in this cause," was held insufficient; but an affidavit that the defendant had stated “the facts of this case," was held sufficient (Jordan v. Garrison, 6 How. 6; see note to $258, post). The 59th Rule does not, as has been said, require the defendant to disclose in his affidavit the matters which he intends to set up in his answer. He may do so, but if he prefers to omit it, or make only a partial disclosure of his intended defense, he may do so (Mixer v. Khun, 4 How. 412).

a. Although there may be no stay of proceedings yet the plaintiff cannot, after argument and before decision of a motion to change the place of trial, take an inquest (Wilson v. Henderson, 15 How. 90).

b. The plaintiff may resist the motion, by an affidavit showing material witnesses (1 How. 56) residing in the county named in the complaint as the county of trial (2 Caines', 374; 3 id. 95; 2 Johns. 481; 7 Cowen, 102; 19 Wend. 10). But he must swear unqualifiedly, that he has witnesses in or near the county named in the complaint as the county of trial, of an equal number with those of the defendant, or a greater number, or the place of trial will be changed (12 Wend. 294). And the residence of a greater number of witnesses in an adjoining State, adjacent to the place of trial named in the complaint, is not sufficient to retain the place of trial (2 Wend. 282; 6 id. 541; 4 Hill, 68, note). It is no answer to a motion to change the place of trial that by granting it the plaintiff will lose a term, where the defendant is not chargeable with laches; and even where he is so chargeable, his neglect must be such as to produce the delay, or the motion will be granted (Lynch v. Mosher, 4 How. 86).

c. Where after service of papers for a motion to change the venue, together with an order to stay proceedings, the plaintiff amended his declaration by changing the venue to another county, and it appeared on the motion that the plaintiff had a sufficient number of witnesses to retain the venue in the latter county, and that the defendant had had time to serve new papers since the amendment, but omitted to do so, the motion was denied (1 Hill, 374). And where, on receiving notice of the motion, the plaintiff agreed to change the venue, according to the wish of the defendant, provided he would accept short notice of trial, the motion was denied, as defendant could not show it to be impossible for him to prepare for trial on short notice (2 Wend. 498). So, where the defendant after service of his papers, and before the motion was actually made, suffered a default for not pleading, this was held to defeat the application (4 Hill, 69).

d. The court, in deciding the motion, will consider the convenience of resident witnesses (4 Wend. 208; 9 id. 451; 1 Hill, 668, 671), but not that of witnesses residing out of the State (N. Y. Zinc Co. v. Blood, 8 Abb. 147). Where the plaintiff outnumbers the defendant in witnesses (12 Wend. 294; 1 Hill, 668, 671), or swears to an equal number (5 Cow. 414; 12 Wend. 291), the motion will be denied (Austin v. Hinckley, 13 How. 576); but not under all circumstances (5 Hill, 509; 1 How. 73). So where it is clear that the defendant's object is merely delay (12 Wend. 293; 22 id. 615; 10 id. 571), or where his affidavit is defective (19 Wend. 617; 9 id. 431; 22 id. 636; 2 Hill, 359), the motion will be denied. And where, in a common action of assumpsit, the defendant swore to seventy-eight witnesses as material to his defense, it was considered a fraud upon the court, the nature of the action not being fully explained to satisfy the court that the number of witnesses was necessary (1 How. 122; 4 Hill, 536).

e. Where the plaintiff undertook to bear all the expenses of bringing the defendant's witnesses to the county where the venue was laid, the motion to change was denied (Worthy v. Gilbert, 4 Johns. 492). But this will not always be done (Rathbone v. Harmon, 4 Wend. 208).

a. The county in which the witnesses reside, rather than the distance they will have to travel, must govern, on motions to change the place of trial (Hull v. Hull, 1 Hill, 671; Beardsley v. Dickerson, 4 How. 81; People v. Wright, 5 How. 23). In deciding motions to change the place of trial, "courts now look beyond the affidavits of the parties and the advice of counsel, to the cause of action and the defense, to ascertain what is to be tried, and determine from a view of the whole case as presented by the pleadings and affidavits, whether a change of the place of trial will really accommodate and be most convenient for the greatest number of witnesses, who, in the reasonable and proper exercise of care and prudence in the preparation for trial will be required to attend the circuit" (King v. Vanderbilt, 7 How. 385). In determining such motions, the convenience of witnesses is the main consideration, though the dispatch or delay in the trial of the action, by the change, is not to be wholly overlooked (ib.) And it seems that the objection to changing the place of trial to the city and county of New York, on account of the pressure of business in that city, and apprehended delays in the trial, may be obviated by granting an election to the parties to substitute an adjoining county, Kings, Richmond, Westchester, or Rockland (Goodrich v. Vanderbilt, 7 How. 467).

b. Changing place of trial to obtain impartial trial.—Where the ground of motion is that an impartial trial cannot be had in the county named as the place of trial, this fact must be made to appear very conclusively. Accordingly, the motion was refused where it was founded merely on the fact that the sheriff of the county was a party to the suit (2 Caines', 46), or that the corporation of the city of New York was a party, where the venue was laid in that city (2 Johns. Cas. 335), or in an action for slander or libel that a violent party spirit prevailed in the county (1 Caines', 487; 2 Wend. 250; 3 Caines', 127). But the place of trial was changed on the ground of excitement after two ineffectual attempts to obtain a verdict (12 Wend. 203). And it was held sufficient cause to change the place of trial, that the circuit judge of the district where the venue was laid, was, previous to his appointment, counsel in the cause (2 Wend. 290). A supposed excitement or prejudice, which makes it doubtful whether an impartial trial can be had in the county to which it is moved to change the place of trial, is no cause for refusing the motion. The inability to obtain an impartial trial must be clearly established. Ordinarily, an actual experiment, by way of trying the cause, or attempting to impanel a jury, should first be made (People v. Wright, 5 How. 23); but this preliminary is not required in every case (Budge v. Northam, 20 How. 248).

TITLE V.

Manner of Commencing Civil Actions.

SECTION 127. Actions, how commenced.

128. Summons, requisites of.

129.

Notice to be inserted in summons.

130. Complaint need not be served with summons.
131. Defendant unreasonably defending.

132.

Notice of lis pendens.

133. Summons, by whom served.

134. Service of summons.

135.

Publication of summons.

136, Proceedings when part only of defendants served.
137. When service by publication complete.

138. Proof of service.

139. When jurisdiction of action acquired.

$127. Actions, how commenced.

Civil actions in the courts of record of this State shall be commenced by the service of a summons.

a. The only mode of commencing an action under this code is by summors (§§ 99, 127), or the obtaining a provisional remedy (§ 139; Ex parte Ransom, 3 Code Rep. 148; Moore v. Thayer, ib. 176; Treadwell v. Lawlor, 15 How. 8). There is no other mode of bringing a party into court against his will, except by the service of a summons (Akin v. Albany North. R. R. Co. 14 How. 337; and see O'Hara v. Brophy, 24 id. 383).

b. The action should not be commenced until the cause of action has accrued (Smith v. Holmes, 19 N. Y. 271; McCullough v. Colby, 4 Bosw. 603; Wiggins v. Orser, 5 Duer, 118; Oothout v. Ballard, 41 Barb. 33; Smith v. Aylesworth, 40 Barb. 104).

See section 139, post.

§ 128. (Am'd 1870.) Summons, requisites of.

The summons shall be subscribed by an attorney, and directed to the defendant, and shall require him to answer the complaint, and serve a copy of his answer on the person whose name is subscribed to the summons, at a place within the State, to be therein specified, in which there is a post-office, within twenty days after the service of the summons, exclusive of the day of service.

c. Name of the court, &c.-In all cases, the summons must state the name of the court in which the action is brought (Dix v. Palmer, 5 How. 233; James v. Kirkpatrick, 5 How. 241). Where the summons was served without a copy of the complaint and without the name of any court appearing thereon, the defendant demanded a copy of the complaint, and one was served entitled "Sup. Court." On motion to set aside the proceedings, it was held that the name of the court sufficiently appeared; and the plaintiff was allowed to amend by entitling the summons and complaint in the "Supreme Court" (Walker v. Hubbard, 4 How. 154). The place of trial named in the complaint was not the city of New York. Where a summons was served

which did not mention the name of any court (and without any copy of the complaint), the defendant disregarded it, and the plaintiff took judgment for want of an answer, the court set the judgment aside, and without requiring the defendant to put in an affidavit of merits (James v. Kirkpatrick, 5 How. 241; Croden v. Drew, 3 Duer, 654); where, after a summons was served without any copy of the complaint, and without naming any court, the defendant gave a general notice of appearance, it was held that he thereby waived the defect in the summons (Dix v. Palmer, 5 How. 233; Webb v. Mott, 6 id. 439); and all other irregularities on the face of the summons (Voorhies v. Schofield, 7 How. 51; and see Baxter v. Arnold, 9 How. 445).

a. Amending Summons.--A mistake in the form of a summons has been held not within § 172 (Dibblee v. Mason, 1 Code R. 37). Although the court may have the power to amend the summons, it could only be done on motion to amend it (Me Crane v. Moulton, 3 Sand. 736; Allen v. Allen, 14 How. 248). b. Misnomer.-It seems that if there is a misnomer of the defendant (except in cases coming within section 175) in the summons, a motion to set aside for that reason can not be entertained (Miller v. Stettiner, 7 Bosw. 692; 22 How. 518; Traver v. Eighth Ave. R. R. Co. 3 Trans. Ap. 203; 6 Abb. N. S. 46; see Moulton v. de ma Carty, 6 Rob. 470; Cooper v. Burr, 45 Barb. 10; B'k of Havana v. McGee, 20 N. Y. 362, and note to § 142, subd. 1, Names of Parties).

c. Subscription.—The attorney mentioned means an attorney-at-law (Weare v. Slocum, 3 How. 397). Where an infant was plaintiff, and sued by guardian, it was held that the attorney conducting the suit might subscribe the summons (Hill v. Thacter, 3 How. 407). The name of the attorney being printed on the summons is sufficient (Mut. Life Ins. Co. v. Ross, 10 Abb. 260, n; Saunderson v. Jackson, 3 Esp. 180; 2 B. & P. 238; Schneider v. Norris, 2 M. & S. 286; Barnard v. Heydrick, 2 Abb. N. S. 47; see B'k of Cooperstown v. Woods, 28 N. Y. 546). Where the summons is signed by the firm-name of two attorneys, who are in partnership, and the complaint and subsequent proceedings are signed with the individual name of one of such attorneys only, the court may, after judgment, amend the summons by substituting the individual name of the attorney for such firm name (Sluyter v. Smith, 2 Bosw. 673).

d. After answer of title.—Where, after an answer of title in a justice's court, an action for the same cause of action is commenced in the supreme or a county court, the summons should allude to the suit before the justice by some suitable averment (Royce v. Brown, 3 How. 391). But its omitting to do so is not such an irregularity as will entitle the defendant to move to set it aside.

e. Representative character. It is presumed that where a party sues or is sued, in a representative character, the character in which he sues should be stated after his name in the summons (1 Arch. Pl. 81); as, whether he sues as trustee, executor, or how otherwise (8 How. 84).

f. Action against county.—In an action against a county, the defendants should be described as "the Board of Supervisors of the county of but in an action against the supervisors, the defendants should be described by their individual names, and by their name of office (Wild v. B'd of Supervisors of Columbia, 9 How. 315). Where, in an action, the defendants are described as "The Board of Supervisors," the court will intend the action is against the county (ib.)

g. Penal action.-In action to recover a penalty or forfeiture, the summons should be endorsed with a general reference to the statute giving the penalty (2 R. S. 481, § 7; 17 Wend. 86; 4 Denio, 269). A reference to the statute, as "of the internal police of the State," held not sufficient (Avery v, Slack, 17 Wend. 85). An indorsement, "issued according to the provisions of the statute concerning the incorporation of turnpike and plank-road companies, and the collection of penalties for the demanding and receiving more than lawful toll in passing through toll gates on such roads," held sufficient (Marselis v. Seaman, 21 Barb. 319); and in an action to recover penalties for

violating the excise law, it is sufficient indorsement that such summons is issued "according to the provisions of tit. 9, pt. 1, ch. 20 of the statute of excise and the regulation of taverns and groceries" (Perry v. Tynen, 22 Barb. 137; and see Andrews v. Harrington, 10 id. 343; B'd of Excise v. Doherty, 16 How. 46; Sprague v. Irwin, 27 How. 51).

a. Other cases.-For the form of the summons when served without any copy of the complaint, see section 130; and when served by publication, see section 135.

$ 129. (Am'd 1849.) Notice to be inserted in summons.

The plaintiff shall also insert in the summons a notice, in substance as follows:

1. In an action arising on contract, for the recovery of money only, that he will take judgment for a sum specified therein, if the defendant fail to answer the complaint in twenty days after the service of the summons.

2. In other actions, that if the defendant shall fail to answer the complaint within twenty days after service of the summons, the plaintiff will apply to the court for the relief demanded in the complaint.

b. Construction of section.-The phrase, " for the recovery of money only," means the recovery of a definite sum of money as such, and without calling upon the court to ascertain anything but the existence or terms of the contract by which it accrued due (Tuttle v. Smith, 14 How. 395; 6 Abb. 329). An action that requires the determination of amounts unliquidated in their nature, requiring other proof, and depending upon other considerations than such as appear in the contract itself, is not to be deemed an action for the recovery of money only, but rather an action to establish and ascertain the plaintiff's right to damages, which are to be paid in money (id.) The actions referred to in the first division" are actions at law, properly so called, in which, from the nature of the contract, the plaintiff knows and can specify the sum he is entitled to recover" (West v. Brewster, 1 Duer, 647). "Subdivision 1 ought only to be applied to those contracts which in terms provide for the payment of money" (Hyde Park v. Teller, 8 How. 504; and see The People v. Bennett, 6 Abb. 343; Durant v. Gardner, 10 Abb. 445; Munger v. Hess, 28 Barb. 75, and infra).

c. Actions within subdivision 1.—An action to recover a penalty given by statute (The People v. Bennett, 5 Abb. 384; 6 id. 343; Comm'rs of Albany v. Classon, 17 How. 193).

d. For goods sold and delivered (Diblee v. Mason, 1 Code Rep. 37; Champlin v. Deitz, 37 How. 214.)

e. To recover $200, as liquidated damages on the breach of a contract (Hyde Park v. Teller, 8 How. 504).

f. Where the complaint set up a contract and breach, and prayed judgment for a specific sum (Croden v. Drew, 3 Duer, 654).

g. For damages for death of one by wrongful act (Doedt v. Wiswall, 15 How. 128).

h. Against sureties on an undertaking given pursuant to section 209 of the Code (Montegriffo v. Mustie, 1 Daly, 77; see Kelsey v. Covert, 15 How. 92).

i. Actions within subdivision 2.-An action on the common-law liability of an inn-keeper (The People v. Willett, 6 Abb. 37).

j. Against an attorney for an account of moneys collected by him (West v. Brewster, 1 Duer, 647).