person with whom or in whose name a contract is made for the benefit of another. As amended by Laws of 1851, ch. 479. 22 N. Y., 392, 562; 11 N. Y., 391; 9 N. Y., 179, 212; 25 B., 396; 23 CHAP. XI. $114. When a married woman is a party her husband must be When a joined with her, except that married woman is 1. When the action concerns her separate property, she may sue alone; a party. 2. When the action is between herself and her husband, she may sue or be sued alone, and in no case need she prosecute or defend by a guardian or next friend. Amended by Laws of 1851, ch. 479; 1857, ch. 723. 23 N. Y., 529; 16 N. Y., 73; 31 B., 128, 322; 18 B., 150; 12 B., 19; appear by guardian. § 115. When an infant is a party, he must appear by guardian, who Infant to may be appointed by the court in which the action is prosecuted, or by a judge thereof, or a county judge. 32 B., 49; 13 How. P. R., 413; 3 How. P. R., 331; 11 Ab., 455; 10 § 116. The guardian shall be appointed as follows: when infant defendant. 1. When the infant is plaintiff, upon the application of the infant, if Guardians, he be of the age of fourteen years; or, if under that age, upon the how to be application of his general or testamentary guardian, if he has any, or appointed of a relative or friend of the infant. If made by a relative or friend is plaintiff. of the infant, notice thereof must first be given to such guardian, if he has one; if he has none, then to the person with whom such infant resides. 2. When the infant is defendant, upon the application of the infant, When if he be of the age of fourteen years, and apply within twenty days after service of the summons. If he be under the age of fourteen, or neglect to so apply, then upon the application of any other party to the action, or of a relative or friend of the infant, after notice of such application being first given to the general or testamentary guardian of such infant, if he has one within this state; if he has none, then to the infant himself, if over fourteen years of age, and within the state; or, if under that age, and within the state, to the person with whom such infant resides. And in actions for the partition of real property, In actions or for the foreclosure of a mortgage or other instrument, when an for real infant defendant resides out of this state, or is temporarily absent when infant therefrom, the plaintiff may apply to the court in which the action is defendant pending, at any special term thereof, and will be entitled to an order the state. designating some suitable person to be the guardian for the infant defendant, for the purposes of the action, unless the infant defendant, or some one in his behalf, within a number of days after the service of a copy of the order, which number of days shall be in the said order specified, shall procure to be appointed a guardian for the said infant, and the court shall give special directions in the order for the manner of the service thereof, which may be upon the infant. And in case an When infant defendant having an interest in the event of the action shall guardian reside in any state with which there shall not be a regular communica- to be aption by mail, on such fact satisfactorily appearing to the court, the pointed. court may appoint a guardian ad litem for such absent infant party, property is out of ad litem PART III. Who may for the 22 B., 49; 31 B., 309; 28 B., 302; 11 Ab., 456; 10 Ab., 310, 317, 41; § 117. All persons having an interest in the subject of the action, be joined as and in obtaining the reliet demanded, may be joined as plaintiffs, except as otherwise provided in this title. plaintifs. 29 B., 388; 22 B., 365, 601; 16 B., 258, 292, 325; 8 B., C56; 8 How. P. R., 457, 518; 2 Ab., 14, 15; 1 Ab., 138; 28 How. P. R., 94. Who may § 118. Any person may be made a defendant, who has or claims an be joined as;, dcfendants. interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the questions involved therein. And in an action to recover the possession of real estate, the landlord and tenant thereof may be joined as defendants, and any person claiming title or a right of possession to real estate may be made parties plaintiff or defendant, as the case may require, to any such action. Parties united in interest when to be joined. Amended by Laws of 1867, ch. 781. 23 N. Y., 269; 12 N. Y.. 583; 29 B., 388; 24 B., 250; 22 B., 366, 601; 20 B., 384; 18 B.. 594; 12 B., 353; 9 B., 296; 8 B.. 656; 22 How. P. R., 354; 21 How. P. R., 33; 20 How. P. R., 377; 10 How. P. R., 508; 8 How. P. R., 389, 518; 6 How. P. R., 460; 13 Ab., 458; 7 Ab., 161; 2 Ab., 15; 1 Ab., 45, 138; 43 B., 263; 40 B., 443; 28 How. P. R., 94. § 119. Of the parties to the action, those who are united in interest must be joined as plaintiffs or defendants; but if the consent of any one who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the reason thereof being stated in the complaint; When one and when the question is one of a common or general interest of many or more or persons, or when the parties are very numerous and it may be imdefend for practicable to bring them all before the court, one or more may sue or defend for the benefit of the whole. the whole. Plaintiff 23 N. Y., 327; 32 B., 588; 29 B., 132; 24 B., 250; 22 B., 601; 19 B., 527; 12 B., 19; 11 B., 518; 8 B., 656, 666; 21 How. P. R., 319; 17 How. P. R, 78; 8 How. P. R., 518; 13 Ab., 123, 346; 10 Ab., 233; 2 Ab, 453; 35 B., 598; 19 Ab., 362; 28 How. P. R., 94, 230; 24 How. P. R., 147. §120. Persons severally liable upon the same obligation or instrument, may sue in including the parties to bills of exchange and promissory notes may,all or any of them, be included in the same action, at the option of the plaintiff. one action different parties to commercial paper. Actions not death, &c. 23 N. Y., 287; 10 N. Y., 317; 23 B., 443; 16 B., 184, 291; 8 B., 656; 20 How. P. R., 72; 11 How. P. R., 570; 10 Ab., 117; 3 Ab., 308; 4 E. D. S., 379; 38 B., 622; 14 Ab.. 279. § 121. No action shall abate by the death, marriage or other disato hate by bility of a party, or by the transfer of any interest therein, if the cause of action survive or continue. In case of death, marriage or other disability of a party, the court, on motion, at any time within one year thereafter, or afterwards on a supplemental complaint, may allow the action to be continued by or against his representative or successor in interest. In case of any other transfer of interest, the action shall be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted in the action. After a verdict shall be rendered in any action for a wrong, such action shall not abate by the death of any party, but the case shall proceed thereafter in the same manner as in cases where the cause of action now survives by law. At any time after the death, marriage, or other disability of the party plaintiff, the court in which Proceed ings in case of death, marriage, or other disability of parties. an action is pending, upon notice to such persons as it may direct, and 26 B, 575; 23 How. P. R., 300; 21 How. P. R, 352; 20 How. P. R., CHAP. XL controversy other par § 122. The court may determine any controversy between the par- Court, when ties before it, when it can be done without prejudice to the rights of to decide others, or by saving their rights, but when a complete determination or to order of the controversy cannot be had without the presence of other par- the ties, the court must cause them to be brought in. And when, in an brought in. action for the recovery of real or personal property, a person not a party to the action, but having an interest in the subject thereof, makes application to the court to be made a party, it may order him to be brought in by the proper amendment. A defendant against whom an action is pending upon a contract, or for specific, real or personal property, may at any time before answer, upon affidavit, that a person, not a party to the action, and without collusion with him, makes against him a demand for the same debt, or property, upon due notice to such person, and the adverse party, apply to the court for an order to substitute such person in his place, and discharge him from liability to either party on his depositing in court the amount of the debt, or delivering the property, or its value, to such person as the court may direct; and the court may, in its discretion, make the order. As amended by Laws of 1851, ch. 479. 18 N. Y., 485; 31 B., 657; 29 B., 26, 388; 24 B., 162; 23 B., 262; 22 TITLE IV. OF THE PLACE OF TRIAL OF CIVIL ACTIONS. BEC. 123. Certain actions to be tried where the subject or some part thereof is situated. 124. Other actions, where the cause, or some part thereof, arose. 125. Other actions, according to the residence of the parties. 126. Action may be tried in any county unless defendant demand trial in proper county. Certain ac tried where § 123. Actions for the following causes, must be tried in the county tions to be in which the subject of the action or some part thereof is situated, subject or subject to the power of the court to change the place of trial, in the some part cases provided by statute. 1. For the recovery of real property or of an estate or inte thereof is situated. PART III. Other ac cause or rest therein, or for the determination, in any form, of such right or interest, and for injuries to real property: 2. For the partition of real property: 3. For the foreclosure of a mortgage of real property: cause. S 124. Actions for the following causes, must be tried in tions, where the county where the cause or some part thereof arose, subsome part ject to the like power of the court, to change the places of trial in the cases provided by statute: thereof arose. Other actions, ac cording to 1. For the recovery of a penalty or forfeiture imposed by statute; except that when it is imposed for an offense committed on a lake, river, or other stream of water situated in two or more counties, the action may be brought in any county bordering on such lake, river or stream, and opposite to the place where the offense was committed: 2. Against a public officer or person specially appointed to execute his duties, for an act done by him in virtue of his office, or against a person who by his command or in his aid, shall do anything touching the duties of such officer. 9 N. Y., 267; 12 B., 58; 17 How. P. R., 522; 11 How. P. R., 240; 7 $125. In all other cases, the action shall be tried in the county in which the parties or any of them shall reside at the residence of commencement of the action; or if none of the parties shall the parties. reside in the state, the same may be tried in any county which the plaintiff shall designate in his complaint; subject, however, to the power of the court to change the place of trial, in the cases provided by statute. Action may any county, unless de fendant demard 17 How. P. R., 522, 545; 7 How. P. R., 462; 5 How. P. R., 141, 243; 4 How. P. R., 88, 185; 8 Ab., 148; 6 Ab., 329; 4 Ab., 55, 246, 373. $126. If the county designated for that purpose in the combe tried in plaint, be not the proper county, the action may, notwithstanding, be tried therein, unless the defendant, before the time for answering expire, demand, in writing, that the trial be had in the proper county, and the place of trial be thereupon changed by consent of parties, or by order of the court, as is provided in this section. trial in pro per county. The court may change the place of trial in the following cases: 1. When the county designated for that purpose in the complaint is not the proper county: 2. When there is reason to believe that an impartial trial cannot be had therein: 3. When the convenience of witnesses and the ends of justice would be promoted by the change. When the place of trial is changed, all other proceedings shall be had in the county to which the place of trial is changed, unless otherwise provided by the consent of the parties, in writing, duly filed, or order of the court, and the papers shall be filed or transferred accordingly. As amended by Laws of 1851, ch. 479. 26 B., 198; 17 B., 229; 6 B., 146; 20 How. P. R., 248; 17 How. P. R., 481; 4 How. P. R., 88, 342; 8 Ab., 273; 24 B., 511; 16 Ab., 395. TITLE V. OF THE MANNER OF COMMENCING CIVIL ACTIONS. SEC. 127. Actions, how commenced. 128. Summons, requisites of. 129. Notice to be inserted in actions. 130. Complaint need not be served with summons. In such case what to be stated in summons and proceedings thereon. 131. Defendant unreasonably defending, when to pay costs. 132. Notice of pendency of action affecting title to real property. 133. Summons, by whom served. 134. Summons, how served and returned. 135. Publication when defendant cannot be found. 136. Proceedings when there are several defendants, and part only served. 137. When service deemed made in case of publication. 138. Service of summons, how proved. 139. When jurisdiction of action acquired. CHAP. XL. $127. Civil actions in the courts of record of this state, Actions, shall be commenced by the service of a summons. 11 N. Y., 55; 18 B., 334; 10 B., 259; 8 B., 543; 14 How. P. R., 361; how commenced. of. $128. The summons shall be subscribed by the plaintiff, or Summons, his attorney, and directed to the defendant, and shall require requisites 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. 10 N. Y., 317; 18 B., 334; 14 B., 541; 7 B., 84; 16 How. P. R., 371; S129. The plaintiff shall also insert in the summons a Notice to notice, in substance as follows: be inserted in certain 1. In an action, arising on contract for the recovery of actions. 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. 11 N. Y., 352; 32 B., 63; 29 B., 385; 18 B., 334; 11 B., 305; 7 B., 84; |