of habitual drunkenness, and for whom a committee has been appointed, to such committee and to the defendant personally. 4. In all other cases to the defendant personally. Note to Subdivision 1. a. Service on corporations.-The service must be on some one of the officers named (Arken v. Quartz Rock &c. Comp. 6 Cal. R. 186). A managing agent is one whose agency extends to all the business of the corporation (Brewster v. Michigan Central R. R. Co. 5 How. 183). A baggage-master (Flynn v. Hudson River R. R. Co. 6 id. 308), or one who merely sells tickets, is not to be deemed a managing agent on whom service of process may be made (Doty v. Michigan Central R. R. Co. 8 Abb. 427). A person acting under a power of attorney for an insurance company, located elsewhere, and authorized to effect insurance, was held to be a managing agent (Bain v. Globe Ins. Co. 9 How. 448). Where it is uncertain whether or not the party served is or is not a managing agent of the defendant, the burden is on the defendant to show the relation to it of the party served, and that he is not a managing agent (Donadi v. N. Y. State Mut. Ins. Co. 2 E. D. Smith, 519). The provis ion in this section is a substitute for the service by publication (Bates v. New Orleans &c. Railroad Co. 4 Abb. 77; 13 How. 516). Where there are two parties who make adverse claims to be officers of such corporation, the proper person to be served is the officer de facto (Berrian v. Metho. Soc. in New York, 4 Abb. 424; see Laws 1869, ch. 157); where the proof of service is the written admission of an officer of the corporation, the signature to such admission must be verified by affidavit (Jones v. U. S. Slate Co. 16 How. 129). b. As to service on railroad corporation, see Laws 1854, ch. 282; Laws 1869, p. 274; and on foreign corporations, Laws 1855, ch. 279; on corporation of New York, Laws 1867, p. 1606; ante p. 14; on express companies, Laws 1866, ch. 411. c. This section does not extend the jurisdiction of the courts against foreign corporations (Cumberland Coal Co. v. Sherman, 8 Abb. 243). d. Service on supervisors.-1 R. S. 384, § 3. e. Service on a convict in the State Prison is valid (Davis v. Duffie 4 Abb. N. S. 478; 3 Trans. Ap. 54). f. Cause of action-Where it arises.-A cause of action is the right a party has to institute and carry through a proceeding (Meyer v. Van Collem, 28 Barb. 231). Where a railroad company, chartered by the State of Vermont, by its president, drew a bill of exchange in the State of Vermont, payable in New York, and drawn upon J. W. B., the treasurer of the said company in Boston, and accepted and indorsed in Boston by J. W. B. as treasurer of said company, and by the said J. W. B. sold to the Bank of Commerce in Boston, the bill on maturity was presented for payment in New York, and was there protested for nonpayment,-held that the cause of action arose in this State (Bank of Commerce v. Wash, and Rutland R. R. Co. 10 How. 1; Conn. Mut. Ins. Co. v. Cleveland R. R. Co. 23 How. 180; 26 How. 226). Where a loan is made by one non-resident to another, out of this State, and secured by a draft drawn upon a person residing within this State, the cause of action cannot be said to have arisen within this State (Western Bank v. City Bank of Columbus, 7 How. 238). Where a contract is made at one place and is to be performed at another, the cause of action upon such contract arises at the latter place (Burckle v. Eckhart, 3 N. Y. 132; see Story, Conflict of Laws, § 317, 47 Barb. 29). Where does a cause of action arise discussed (Cumberland Coal Co. v. Sherman, 8 Abb. 249; Campbell v. Proprietors of Champlain R. R. 18 How. 412; Conn. Mut. Ins. Co. v. Cleveland R. R. Co, 41 Barb. 28; Artisans Bank v. Park Bk. il. 599; Jewell v. Wright, 30 N. Y. Note to subd. 3. a. Lunatics.—The provision for service on a lunatic does not dispense with the rule of law forbidding an action against one judicially declared a lunatic, unless by leave of the court. The proper course for a party who has a claim against a lunatic or his estate, after office found, is to apply to the supreme court by petition for the payment of the debt, or for leave to bring a suit for the purpose of establishing the claim (Soverhill v. Dixon, 5 How. 109; Crippen v. Culver, 13 Barb. 424). If the court is satisfied that the debt is justly due, the committee will be ordered to pay it out of the estate; or, if the claim is doubtful, the court will either have it settled by a reference, or give the claimant permission to establish his claim by an action (Re Hopper, 5 Paige, 489; Williams v. Cameron, 26 Barb. 172). An action against the lunatic, commenced without the permission of the court, would be restrained (Re Heller, 3 Paige, 199; but see Robertson v. Lain, 19 Wend. 650). A judgment in an action commenced without such leave would be of no avail (Clark v. Dunham, 4 Denio, 262; Heller's case, 3 Paige, 201). It may be set aside on motion or by an action (Demilt v. Leonard, 11 Abb. 252; 19 How. 140). Such a judgment is not void (Sternberg v. Schoolcraft, 2 Barb. 153; and see Griswold v. Miller, 15 id. 650; and 2 Paige, 422). b. Service on an insane person who has no committee must be by a personal service on such person (Heller v. Heller, 6 How. 194). Note to subdivision 4. c. Personal service.-When the summons in an action is not legally served, the court has no jurisdiction of the defendant, and all proceedings based on the pretended service are void (Bulkley v. Bulkley, 6 Abb. 307). d. "Service means, serving the defendant with a copy of the process, and showing him the original if he desires it" (Goggs v. Huntingtower, 12 M. & W. 502; Williams v. Van Valkenburgh, 16 How. 152). And the copy summons must be delivered to and left with the defendant (Rule 18). A mere manual delivery of the summons is not good service, unless the summons be left with the defendant (Beekman v. Cutter, 2 Code Rep. 51; and see Niles v. Vanderzee, 14 How. 547, and note to section 138). Where the defendant refuses to accept the summons, service may be made on him by “laying it down at any appropriate place in his presence." Effecting a service by forcibly thrusting the paper upon the person of the defendant is improper, and where service was so effected the court will set it and all subsequent proceedings aside (Darison v. Baker, 24 How. 39). Where, however, a defendant refused to receive a process, it was held that laying it on his shoulder was good service (Bell v. Vincent, 7 D. & R. 233). e. Place of service.-The service of the summons must, except in the cases provided for in § 135, be within the territorial jurisdiction of the court (Litchfield v. Burwell, 5 How. 341; Fiske v. Anderson, 33 Barb. 75; Morrell v. Kimball, 4 Abb. 352). Acceptance of service out of the State would not confer jurisdiction (id) unless followed by an appearance in the action. But in all actions in which the superior court of the city of New York has jurisdiction by subd. 1 of § 33 of the code, and in an action against several persons jointly liable on contract, when one of them resides in the city of New York, the summons may be served in any county of the State; and that it is only in those actions of which jurisdiction is acquired by the fact of the personal service of the summons on all the defendants within the city of New York that service of the summons out of the city of New York is unauthorized and invalid (Porter v. Lord, 4 Abb. 43; 4 Duer, 682). Process may be served on board a British man-of-war lying within the jurisdiction of the court (1 Opin. Atty. Gen'l. 87). f. The court refused to set aside the service of a summons, made upon a resident of New Jersey, at a time when he was attending as a witness and party in a suit in which he was a defendant (Pollard v. Union Pacific R. R. Co. 7 Abb. N. S 70). This was affirmed at general term. (Ed.) Contra, see a. Time of service.-Service of summons on a Sunday would be void (Field v. Park, 20 Johns. 140; and see 8 Barb. 387); but it may be at any hour of the day or night. In this respect there is a distinction between services of notices and of process (Priddee v. Cooper, 1 Bing. 66; Upton v. McKenzie, 1 D. & R. 172; Weyburn v. Neale, 2 Burr. 813; see post, note to § 408). Process cannot be served on Saturday on persons who observe that day as a Sabbath (Laws 1839, ch. 367, repealed Laws 1847, ch. 349; Hastings v. Farmer, 4 N. Y. 296). The fact that process was served on Sunday does not render the judgment void (Murks v. Wilson, 11 Abb. 87). b. Service on election day.-Service of a summons on an elector on an election day, is a void service (Meeks v. Noxon, 1 Abb. 280; 11 How. 189; Hastings v. Farmer, 4 N. Y. 296; Bierce v. Smith, 2 Abb. 411; Laws 1842, ch. 130; Wheeler v. Bartlett, 1 Edw. Ch. R. 323; Re Election Law, 7 Hill, 194). c. Service on day of town meeting.-(1 R. S. 342, § 10). d. Fraud in service.-The courts will not sanction any attempt by fraud or misrepresentation to bring a party within the jurisdiction (Carpenter v. Spooner, 2 Sand. 717; Goupel v. Simonson, 3 Abb. 474); thus, where by a false statement made for the purpose, a defendant was induced to come to the city of New York, and was there served with process, it was held to be irregular (id.; and see Metcalf v. Clark, 41 Barb. 45). e. Service on husband and wife.-Where the action is against husband and wife, service on the husband alone will be good service on both, unless relief be asked out of the separate estate of the wife, in which case she must be served (Eckerson v. Vollmer, 11 How. 42; Foote v. Lathrop, 53 Barb. 183). f. Service on the people.-In a suit against the State, the service of process on the governor, or chief executive magistrate, and on the attorneygeneral of the State, is a regular service (Chisholm's Exors. v. State of Georgia, 3 Peters' Cond. Rep. 51; 2 Dallas' Rep. 419). g. Defective service is to be cured by motion (Nones v. Co. 8 Barb 541). Hope Mut. Ins. § 135. (Am'd 1849, 1851, 1858, 1860.) Service by publication. Form of summons. Where the person on whom the service of the summons is to be made cannot, after due diligence, be found within the State, and that fact appears by affidavit to the satisfaction of the court, or a judge thereof, or of the county judge of the county where the trial is to be had, and it in like manner appears that a cause of action exists against the defendant in respect to whom the service is to be made, or that he is a proper party to an action relating to real property in this State, such court or judge may grant an order that the service be made by the publication of a summons, in either of the following cases : 1. Where the defendant is a foreign corporation, has property within the State, or the cause of action arose therein; 2. Where the defendant, being a resident of this State, has departed therefrom with intent to defraud his creditors, or to avoid the service of a summons, or keeps himself concealed therein with the like intent; 3. Where he is not a resident of this State, but has property therein, and the court has jurisdiction of the subject of the action; 4. Where the subject of the action is real or personal property in this State, and the defendant has, or claims, a lien or interest, actual or contingent, therein, or the relief demanded consists wholly or partly in excluding the defendant from any interest or lien therein; 5. Where the action is for divorce, in the cases prescribed by law: The order must direct the publication to be made in two newspapers to be designated as most likely to give notice to the person to be served, and for such length of time as may be deemed reasonable, not less than once a week for six weeks. In case of publication, the court or judge must also direct a copy of the summons and complaint to be forthwith deposited in the postoffice, directed to the person to be served, at his place of residence, unless it appear that such residence is neither known to the party making the application, nor can with reasonable diligence be ascertained by him. When publication is ordered, personal service of a copy of the summons and complaint, out of the State, is equivalent to publication and deposit in the post-office. at The defendant against whom publication is ordered, or his representatives, on application and sufficient cause shown at any time before judgment, must be allowed to defend the action; and, except in an action for divorce, the defendant against whom publication is ordered, or his representatives, may, in like manner, upon good cause shown, be allowed to defend after judgment, or any time within one year after notice thereof, and within seven years after its rendition, on such terms as may be just; and if the defense be successful, and the judgment, or any part thereof, have been collected, or otherwise enforced, such restitution may thereupon be compelled as the court directs; but the title to property sold under such judgment to a purchaser in good faith shall not be thereby affected. And in all cases where publication is made, the complaint must be first filed, and the summons, as published, must state the time and place of such filing. 6. In actions for the foreclosure of mortgages on real estate, already instituted, or hereafter to be instituted, if any party, or parties, having any interest in or lien upon such mortgaged premises, are unknown to the plaintiff, and the residence of such party or parties cannot, with reasonable diligence, be ascertained by him, and such fact shall be made to appear, by affidavit, to the court, or to a justice thereof, or to the county judge of the county where the trial is to be had, such court, justice, or county judge, may grant an order that the summons be served on such unknown party or parties by publishing the same for six weeks, once in each week successively, in the State paper, and in a newspaper printed in the county where the premises are situated, which publication shall be equivalent to a personal service on such unknown party or parties. a. Other provisions.-By Laws 1853, p. 974, whenever it satisfactorily appears to any court, or any judge of the supreme court, or any county judge, by the return or affidavit of any sheriff, deputy sheriff or constable, authorized to serve or execute any process or paper for the commencement or in the prosecution of any action or proceeding, that proper and diligent effort has been made to serve such process or paper on any defendant residing in this State, and that such defendant cannot be found, or if found, avoids, or evades, such service, so that the same cannot be made personally, by such proper diligence and effort,-such court or judge may, by order, direct the service of any summons, subpoena, order, notice or other process or paper to be made by leaving a copy thereof at the residence of the person to be served, with some person of proper age, if admittance can be obtained, and such proper person found who will receive the same; and if admittance cannot be obtained, or any such proper person found, who will receive the same, by affixing the same to the outer or other door of said residence, and by putting another copy thereof, properly folded or enveloped, and directed to the person to be served at his place of residence, into the post-office in the town or city where such defendant resides, and paying the postage thereon. On filing with the clerk of the county where such defendant resides, or the county in which the complaint in any such action is by law to be filed, an affidavit showing service according to such order, such summons, subpoena, order, notice, or other process or paper, shall be deemed served, and the same proceedings may be taken thereon as if the same had been served by delivery to such defendant personally, or otherwise, as by law now required; but the court may, upon any application by them deemed reasonable, at any time permit any defendant to appear and defend, or have such other relief in any action or proceeding founded on any such service, as the nature of the case may require. b. Laws of 1863, ch. 212, amend the foregoing law of 1853, and provide that except in partition cases or actions or proceedings where no personal claim is made against any persons in the classes thereafter described none of the provisions of the Law of 1853 should apply to officers, soldiers or musicians while "actually absent from home" and actually engaged in the military service of the United States, nor to any sailor or marine actually absent "from home" and actually engaged in the naval service of the United States, and except in partition cases and cases where no personal claim is made as aforesaid, no order is to be granted under the Law of 1853 unless it be first shown by affidavit to the satisfaction of the court or judge that the defendant against whom such an order is desired is not an officer, soldier, musician, sailor or marine actually absent and in service as aforesaid, or that the action |
