a. To recover money, where the complaint also seeks to vacate an agreement extending the time of payment, for fraud, and to obtain an immediate judgment for the whole demand (Travis v. Tobias, 7 How. 90).

b. To recover money where the complaint charges fraud (Field v. Morse, 7 How. 12).

e. For wrongfully taking, detaining, and converting personal property (Voorhies v. Schofield, 7 How. 51),

d. To recover unliquidated damages (Croden v. Drew, 3 Duer, 654; Tuttle v. Smith, 14 How. 395; 6 Abb. 329; The People v. Bennett, 6 Abb. 343; Salters v. Ralph, 15 Abb. 273; Garrison v. Carr, 3 Abb. N. S. 366); as on an undertaking of bail (Levy v. Nicholas, 15 Abb. 63; Kelsey v. Covert, 15 How. 92); breaches of covenant in a lease (Cobb v. Dunkin, 19 How. 164; Luling v. Stanton, 8 Abb. 378; 2 Hilton, 538); for liquidated and unliquidated damages, as for goods sold, and for not receiving goods on consignment pursuant to contract (Norton v. Cary, 14 Abb. 364; 23 How. 469).

e. To recover damages for fraud, as for damages for inducing plaintiff, by false pretenses, to buy a worthless note (Hartshorne v. Newman, 15 Abb. 63), or to perform services (Atwell v. LeRoy, 4 Abb. 438).

f. To recover damages for the breach of a contract to convey a farm and personal property (Johnson v. Paul, 14 How. 454).

g. For the breach of a contract of warranty upon an exchange of horses (Dunn v. Bloomingdale, 14 How. 474; 6 Abb. 340, n).

h. For the breach of a contract to marry (Davis v. Bates, 6 Abb. 15; McDonald v. Walsh, 5 id. 68; M’Neff v. Short, 14 How. 463).

i. Against a carrier for the loss of goods entrusted to him to carry (Flynn v. Hudson R. R. Company, 6 How. 308; Hyde Park v. Teller, 8 id. 504; Hewett v. Howell, id. 346; Clor v. Mallory, 1 Code Rep. 126; Campbell v. Perkins, 8 N. Y. 438; Zabriskie v. Smith, 13 N. Y. 333).

j. All cases where the action is not upon a money demand or obligation for the payment of money (Hemson v. Decker, 29 How. 385; and see McDougall v. Cooper, 31 N. Y. 498; Goff v. Edgerton, 18 Abb. 381; Willett v. Stewart, 43 Barb. 98).

k. What is a sufficient notice.-A notice, in a summons under the first subdivision, that the plaintiff will take judgment for a given sum" with interest" thereon from a specified day, is a sufficient compliance with the provisions here contained; and while the legal rate of interest is seven per cent., that will be the rate assumed where not otherwise specified (Swift v. De Witt, 3 How. 280, 282). The summons must follow one or the other of the forms prescribed (Ridder v. Whitlock, 12 How. 208); it cannot follow both, and if it does it will be irregular (Baxter v. Arnold, 9 How. 445). As the summons is the first proceeding in the action, and all subsequent proceedings are supposed to be based upon it, if the complaint does not conform to the summons it is the complaint and not the summons which is irregular (Boington v. Lapham, 14 How. 360; Tuttle v. Smith, id. 395; 6 Abb. 329; Shafer v. Humphrey, 15 How. 564; Ridder v. Whitlock, 12 id. 208; Davis v. Bates, 6 Abb. 15). See, in note to section 142, subd. 1, post: Complaint must agree with summons as to cause of action.

§ 130. (Am'd 1849, 1851.) Service of complaint.

A copy of the complaint need not be served with the summons. In such case, the summons must state where the complaint is or will be filed; and if the defendant, within twenty days thereafter, causes notice of appearance to be given, and, in person or by attorney, demands in writing a copy of the complaint, specifying a place within the State where it may be served,

a copy thereof must, within twenty days thereafter, be served accordingly; and after such service, the defendant has twenty days to answer; but only one copy need be served on the same attorney.

a. Form of summons.-A summons served without any copy of the complaint is irregular unless it states the complaint was or will be filed (Pigno let v. Daveau, 2 Hilton, 584). If the summons state that a copy of the complaint has been filed, instead of stating that the complaint has been filed, it is not such an irregularity as will vitiate a judgment entered for default of answer (Hart v. Kremer, 2 Code Rep. 50). If the complaint is filed, and no copy is served with the summons, and the summons, instead of stating where the complaint is filed, states that a copy of the complaint "is annexed," the summons will be irregular (Keeler v. Belts, 3 Code Rep. 183). Where the summons is in the form appropriate for serving the copy complaint together with the copy summons, the omission to serve a copy of the complaint, or to state in the summons the place of filing the complaint, although irregular, does not affect the validity of the judgment (Foster v. Wood, 1 Abb. N. S. 150; 30 How. 284).

b. Copy complaint to be served.-The only case in which the defendant can demand a copy of the complaint is where there has been personal service of the summons, but no copy of the complaint has been served with it; and where a defendant has been served by publication, and a copy of the summons and complaint has been mailed to him, he is not entitled as of course to demand a copy of the complaint to be served on him (Mackay v. Laidlaw, 13 How. 129). In such a case the complaint is on file, the defendant can obtain a copy. If the defendant does not demand a copy of the complaint within twenty days after service of the summons, the plaintiff is not obliged to serve a copy (Engs v. Overing, 2 Code R. 79; Bennett v. Delicker, 3 ib. 117). But in such a case, the court, on motion of the defendant, may order a copy to be served; and although it may require the defendant to pay the costs of motion, it will not oblige him to swear to merits (id)

c. Several persons may be named in the summons, and the plaintiff may deliver a complaint against only the one upon whom the process is served, omitting the names of the other defendants mentioned in the summons (Travis v. Tobias, 7 How. 90).

d. Demand of copy complaint.-A notice of appearance to which was added, "and I require all papers to be served on me at my office, 11 Wall st.," was held a sufficient demand of copy complaint (Ferris v. Soley, 23 How. 422; Walsh v. Kursheedt, 8 Abb. 418).

e. Within what time copy complaint to be served.—Where a demand of a copy of the complaint was served for one defendant on 1 November, and by the same attorney for another defendant on 9 November, it was held that the plaintiff was bound to serve a copy of the complaint within twenty days of the first demand (Luce v. Tempert, 9 How. 212).

f. Time to serve copy complaint may be enlarged.—After a demand of a copy of the complaint duly made, the plaintiff may, on showing ground therefor, obtain further time to furnish a copy of the complaint (Littlefield v. Merwin, 4 How. 306). But such order cannot be granted ex parte, after the time for serving the complaint has expired (Stephens v. Moore, 4 Sand. 674). As to dismissing a complaint for not serving copy, see section 274, post.

g. Time to answer after copy complaint served.-After the complaint is served pursuant to a demand, the defendant must answer in twenty days, or within such further time as he may obtain by order (Mandeville v. Winn, 5 How. 461; McGown v. Leavenworth, 2 E. D. Smith, 24; and see section 143, post).

h. Where a defendant was served with summons, and subsequently by the

sheriff with an order of arrest, and copy complaint, but was discharged from the arrest, because at the time of arrest he was attending court as a witness, no return of the service of the order or complaint was made by the sheriff, and the defendant not having served notice of appearance or an answer, the plaintiff, twenty days after service of the summons, but within twenty days from the service of the complaint, entered judgment as for want of an answer, and it was held he had a right to do so (Van Pelt v. Boyer, 7 How. 325).

§ 131. (Am'd 1851.) Notice of no personal claim.

In the case of a defendant against whom no personal claim is made, the plaintiff may deliver to such defendant, with the summons, a notice subscribed by the plaintiff or his attorney, setting forth the general object of the action, a brief description of the property affected by it, if it affects specific, real or personal property, and that no personal claim is made against such defendant, in which case no copy of the complaint need be served on such defendant, unless, within the time for answering, he shall, in writing, demand the same. If a defendant on whom such notice is served unreasonably defend the action, he shall pay costs to the plaintiff.

a. The omission of the plaintiff to serve the notice prescribed by this section does not deprive the court of the power, in equity cases, to awards costs against a defendant upon whom a copy of the complaint has been served for unreasonably defending the action (O'Hara v. Brophy, 24 How. 379).

b. As to the service of the notice of the object of the action, the law provides no fee, and the sheriff stands as to that precisely as any other person. The certificate of service should be embodied in the return to the summons, but whether it be or not, no fee for it can be allowed (Benedict v. Warriner, 14 How. 570). If the service is by the sheriff, the compensation cannot be allowed as a "sheriff's fee." The superior court allows 37 cents for the service of such notice, when it is shown to be a necessary and reasonable disbursement (Gallagher v. Egan, 2 Sand. 745). No charge for certificate of service is allowed (id.)

§ 132. (Am'd 1857, 1858, 1862, 1866.) Notice of lis pendens. Action, when deemed pending. Canceling notice.

In an action affecting the title to real property, the plaintiff, at the time of filing the complaint, or at any time afterwards, or whenever a warrant of attachment, under chapter four of title seven, part second of this Code, shall be issued, or at any time afterward, the plaintiff, or a defendant when he sets up an affirmative cause of action in his answer and demands substantive relief, at the time of filing his answer, or at any time afterwards, if the same be intended to affect real estate, may file with the clerk of each county in which the property is situated a notice of the pendency of the action, containing the names of the parties, the object of the action, and the description of the property in that county

affected thereby; and if the action be for the foreclosure of a mort

gage, such notice must be filed twenty days must contain the date of the mortgage, the time and place of recording the same.

e judgment, and thereto, and the

From the time of filing only shall the pendency of the action. be constructive notice to a purchaser or incumbrancer of the property affected thereby; and every person whose conveyance or incumbrance is subsequently executed, or subsequently recorded, shall be deemed a subsequent purchaser or incumbrancer, and shall be bound by all proceedings taken after the filing of such notice, to the same extent as if he were made a party to the action.

For the purposes of this section, an action shall be deemed to be pending from the time of filing such notice; provided, however, that such notice shall be of no avail unless it shall be followed by the first publication of the summons on an order therefor, or by the personal service thereof on a defendant within sixty days after such filing.

And the court in which the said action was commenced may, in its discretion, at any time after the action shall be settled, discontinued, or abated, as is provided in section number one hundred and twenty-one, on application of any person aggrieved, and on good cause shown, and on such notice as shall be directed or approved by the court, order the notice authorized by this section to be canceled of record by the clerk of any county in whose office the same may have been filed or recorded; and such cancellation shall be made by an indorsement to that effect on the margin of the record, which shall refer to the order, and for which the clerk shall be entitled to a fee of twenty-five cents.

a. The notice under this section applies only to parties to the action and purchasers from them subsequent to the notice being filed (The People v. Conolly, 8 Abb. 128; see Chapman v. West, 17 N. Y. 125). It is a statute substitute for actual notice (Hall v. Nelson, 14 How. 32); and is as effectual against any disposition of the property described in it as an injunction (Stevenson v. Fayerweather, 21 How. 449). A purchaser from the defendant is bound by the decree in the action (Harrington v. Slade, 22 Barb. 162; and see Zeiter v. Bowman, 6 id 133; Griswold v. Miller, 15 id. 520; Patterson v. Brown, 32 N. Y. 81). Perhaps, for a plaintiff to retain the benefit of the notice filed under this section, he must prosecute his action diligently (see Myrick v. Selden, 36 Barb. 15). The notice should include only the property actually to be affected by the judgment, and where an attachment issues the notice should include only the property attached (Fitzgerald v. Blake, 28 How. 110). The notice may be amended (Vanderheyden v. Gary, 38 How. 367).

b. Notices of lis pendens to be recorded and indexed (Laws 1864, ch. 53; and see in Kings County, Laws 1859, ch. 212; in Queens County, Laws 1867, ch.

a. Foreclosure.-The notice must be filed in every case of foreclosure (Brandon v. M'Cann, 1 Code Rep. 38), and "at or after the time of filing the complaint" (Rule 71). A decree made without proof of filing the notice would be irregular, but not void (Potter v. Rowland, 8 N. Y. 448). A notice stating every requisite except where the mortgage is recorded would be good (id.)

§ 133. Summons, by whom served.

The summons may be served by the sheriff of the county where the defendant may be found, or by any other person not a party to the action. The service shall be made, and the summons returned with proof of the service to the person whose name is subscribed thereto, with all reasonable diligence. The person subscribing the summons may, at his option, by an indorsement on the summons, fix a time for the service thereof; and the service shall then be made accordingly.

b. Where a plaintiff made a personal service of the summons on the defendant, and the defendant not appearing or answering the plaintiff made an affidavit of the service, and entered judgment, it was held that it was too late for the defendant, after judgment, to move to set aside the proceedings; that the service of the summons by the plaintiff was a mere irregularity, of which, if the defendant desired to avail himself, he should have moved promptly, and before judgment, to set aside the service (Myers v. Overton, 2 Abb. 344, 4 E. D. Smith, 428: Hunter v. Lester, 18 How. 347; 10 Abb. 260). Semble, a sheriff who is plaintiff may serve his own summons (Bennett v. Fuller, 4 Johns. 486). See Rule 8 as to compelling a return.

§ 134. (Am'd 1849, 1851, 1859.) Service of summons.

The summons shall be served by delivering a copy thereof as follows:

1. If the suit be against a corporation, to the president or other head of the corporation, secretary, cashier, treasurer, a director, or managing agent thereof; but such service can be made in respect to a foreign corporation, only when it has property within this State, or the cause of action arose therein, or where such service shall be made within this State personally upon the president, treasurer, or secretary thereof.

2. If against a minor under the age of fourteen years, to such minor personally, and also to his father, mother, or guardian; or if there be none within the State, then to any person having the care and control of such minor, or with whom he shall reside, or in whose service he shall be employed.

3. If against a person judicially declared to be of unsound mind, or incapable of conducting his own affairs in consequence