the person making the designation; and may file the same, with the written consent of the person so desig nated, executed and acknowledged in the same manner, in the office of the clerk of the county, where the person making the designation resides. The designation must specify the occupation, or other proper addition, and the residence of the person making it, and also of the person designated: and it remains in force during the period specified therein, if any; or, if no period is specified for that purpose, for three years after the filing thereof. But it is revoked earlier, by the death or legal incompetency of either of the parties thereto; or by the filing of a revocation thereof, or of the consent, executed and acknowledged in like manner. The clerk must file and record such a designation, consent, or revocation; and must note, upon the record of the original designation, the filing and recording of a revocation. While the designation remains in force, as prescribed in this section, a summons, or any process or other paper for the commencement of a civil special proceeding, against the person making it, in any court or before any officer, may be served upon the person so designated, in like manner and with like effect, as if it was ⚫served personally upon the person making the designation, notwithstanding the return of the latter to the United States.

New.

431. How personal service of summons made upon a domestic corporation. - Personal service of the summons upon a defendant, being a. domestic corporation, must be made by delivering a copy thereof, within the State, as follows:

1. If the action is against the mayor, aldermen, and commonalty of the city of New-York, to the mayor, comptroller, or counsel to the corporation.(1)

2. If the action is against any other city, to the mayor, treasurer, counsel, attorney, or clerk; or, if the city lacks either of those officers, to the officer performing corresponding functions, under another name.(2)

3. In any other case, to the president or other head of the corporation, the secretary or clerk to the corporation, the cashier, the treasurer, or a director or managing agent.(3)

(1) L. 1860, ch. 379, 84. (2) New. (3) Co. Proc., 134, part of subd.

1. Brewster v. Michigan Cent., 5 How. 183; Flynn v. Hudson R. R. R. Co., 6 How. 308; Doty v. Mich. Cent., 8 Abb. 427; Bain v. Globe Ins. Co., 9 How. 448; Donadi v. Ins. Co., 2 E. D. Smith, 519; Berrian v. Methodist, 4 Abb. 424; s. c., 6 Duer, 682.

§ 432. [Amended, 1877.] Id.; upon a foreign corporation. Personal service of the summons, upon a defendant, being a foreign corporation, must be made by delivering a copy thereof, within the State, as follows:

1. To the president, treasurer, or secretary; or, if the corporation lacks either of those officers, to the officer performing corresponding functions, under another

name.

2. To a person designated for the purpose by a writ ing, under the seal of the corporation, and the signature of its president, vice-president, or other acting head, accompanied with the written consent of the person designated, and filed in the office of the secretary of State. The designation must specify a place, within the State, as the office or residence of the person designated; and, if it is within a city, the street, and street number, if any, or other suitable designation of the particular locality. It remains in force, until the filing in the same office of a written revocation thereof, or of the consent, executed in like manner; but the person designated may, from time to time, change the place specified as his office or residence, to some other place within the State, by a writing, executed by him, and filed in like manner. The secretary of State may require the execution of any instrument, specified in this section, to be authenticated as he deems proper, and he may refuse to file it without such an authentication. An exemplified copy of a designation so filed, accompanied with a certificate that it has not been revoked, is presumptive evidence of the execution thereof, and conclusive evidence of the authority of the officer executing it.

3. If such a designation is not in force, or if neither the person designated, nor an officer specified in subdi. vision first of this section, can be found with due dili gence, and the corporation has property within the State, or the cause of action arose therein; to the cashier, a director, or a managing agent of the corpora tion, within the State.

Co. Proc., 134, part of subd. 1, and L. 1855, ch. 279, 1-3. Clews v.

Rockford, 49 How. 117; DeBemer v. Drew, 57 Barb. 438; Gibbs v. Queens Ins. Co., 63 N. Y. 114, and cases.

§ 433. Service of process, etc., to commence a special proceeding. The provisions of this article, relating to the mode of service of a summons, apply likewise to the service of any process or other paper, whereby a special proceeding is commenced in a court, or before an officer, except a proceeding to punish for contempt, and except where special provision for the service thereof is otherwise made by law.

See L. 1855, ch. 279, § 4 (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 r. Burwell, 5 How. 341: Thurston v. King, 1 Abb. 126; Morrell v. Kimball, 4 id, 352; Farmers' Loau Co. v. Dickson, 9 Id. 61; s. c., 17 How. 477; Brien v. Casey, 2 Abb. 416. (2) Jones v. U. S. Slate Co., 16 How. 129; Litchfield v. Bur well, 5 d. 341; Trolan v. Fagan, 48 id. 240. (3) See Read r. French, 28 N. Y. 285.

ARTICLE SECOND.

SUBSTITUTES FOR PERSONAL SERVICE IN SPECIAL CASES. Szo. 435. Order for service of summons from supreme court, when defendant not found, etc.

436. How service must be made.

137. Papers to be filed; 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.

441. Proof of service.

415. Defendant when allowed to defend.

§ 435. [Amended, 1880.] Order for service of sum mons from supreme court, when defendant not found, etc. Where a summons is issued in any court of record, an order for the service thereof, upon a defendant residing 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 service cannot be made.

Part of L. 1853, ch. 511 (4 Elm. 398). Simpson . Burch, 6 T. & C. 560; 8. C., 4 Hun, 315; Collins r. 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 e. McCarthy, 35 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 residence 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 postoffice at the place where he resides.

Part of L. 1853, ch. 511, am'd.

$437. Papers to be filed; proof of service. - The 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

order for that purpose, made as prescribed in the next section.(2)

(1) New. (2) From L. 1853, ch. 511.

$438. [Amended, 1879.] 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 plain. tiff is unable to ascertain whether the defendant is or is not a resident of the State.(1)

2. Where the defendant, being a resident of the State, has departed therefrom, with intent to defraud his creditors, or to avoid the service of a summons; or keeps himself concealed therein, with like intent.(2)

3. Where the defendant, being an adult, and a res ident of the State, has been continuously without the United States more than six months next before the granting of the order, and has not made a designation of a person, upon whom to serve a summons in his behalf, as prescribed in section four hundred and thirty of this act; or a designation so made no longer remains in force; or service upon the person so designated cannot be made within the State, after diligent effort.

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 upon, specific real or personal property within the State; or that such an interest or lien in favor of either party be enforced, regulated, defined, or limited; or otherwise affecting the title to such property.

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, within sixty days next preceding the application, if time had not been extended by the attempt to commence the action.