Service on minors under fourteen years.

incorporation, or by general or special statutes. Thus, in all actions against the city of New York, the summons must be served either upon the mayor, comptroller, or the counsel of the corporation. Laws of 1860, ch. 379, § 4. This question will be further discussed in a subsequent section. See § 7, post.

Section 5. Service on minors under fourteen years. Service must be made upon a minor, under fourteen years of age, by delivering a copy of the summons to the 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. Code, § 134, subd. 2. But if the minor be of the age of fourteen years or upward, service may be made by delivering the copy of the summons to him personally, in the same manner as if he were an adult. Code, § 134, subd. 4.

Section 6. Service on lunatics, drunkards, etc. In an action against a person judicially declared to be of unsound mind, or incapable of conducting his own affairs, in consequence of habitual drunkenness, and for whom a committee has been appointed, the summons must be served by delivering a copy to such committee, and to the defendant personally. Code, § 134, subd. 3. But in case no committee has been appointed, the service must be upon the defendant personally, as in case of service upon persons of sound mind. Code, § 134, subd. 4.

The service of a summons upon one with whom a person of unsound mind resides is not good service. Heller v. Heller, 6 How. 194; S. C., 1 Code R. N. S. 309. In partition suits, where a summons has been served on a part of the defendants, and a guardian ad litem appointed for an infant lunatic, on the application of his guardian or committee, personal service on such infant lunatic need not be made. Rogers v. McLean, 11 Abb. 440; S. C. affirmed, 34 N. Y. (7 Tiff.) 536; 31 How. 279; reversing S. C., 10 Abb. 306; 31 Barb. 304. See Jelly v. Elliott, 1 Cart. (Ind.) 119.

These provisions of the Code, as to the manner of the service of a summons on persons of unsound mind, must not be construed to dispense with the necessity of obtaining leave to sue before commencing actions against such persons. Soverhill v. Dickson, 5 How. 109; S. C., 3 Code R. 162; ante, 201, 202. Section 7. Service on States, counties, towns, and public officers thereof. In an action against a State, the summons should be

Service on imprisoned person-Temporary exemptions.

served on the governor, or chief executive magistrate, and on the attorney-general of the State. Chisholm, executor, v. Georgia, 2 Dall. 419. In actions against a county, or the board of supervisors of a county, the service should be made on the chairman or clerk of the board. 1 R. S. 384 (357), Edm. ed. In an action against a town, the summons should be served on the supervisor of the town. 1 R. S. 357 (329), Edm. ed. Service may be made on a city by serving a summons on its mayor. In the charters of nearly all municipal corporations, provisions are made for the service of process upon the corporation. Service of a summons on the city of New York must be made by service on either the mayor, comptroller, or counsel to the corporation. Laws of

1860, ch. 379, § 4.

Section 8. Service on imprisoned persons. In actions against imprisoned persons, the summons must be served on the defendant personally in the place of his confinement; and although the right of prosecuting an action is denied to such persons, the liability to be sued still exists. Davis v. Duffie, 8 Bosw. 617; S. C. affirmed, 3 Keyes, 606; 3 Trans App. 54, 4 Abb. N. S. 478; reversing S. C., 18 Abb. 360; Morris v. Walsh, 14 id. 387; S. C., 9 Bosw. 636.

Section 9. Temporary exemptions from service. Every defendant is exempt from the service of a summons on Sunday, or on an election day, in a town or city where he is entitled to vote. Field v. Park, 20 Johns. 140; Pulling v. The People, 8 Barb. 384; Meeks v. Noxon, 1 Abb. 280; S. C., sub nom. Weeks v. Noxon, 11 How. 189; Hastings v. Farmer, 4 N. Y. (4 Comst.) 293; Bierce v. Smith, 2 Abb. 411. So, also, no valid service of a summons can be made on any elector, in a town, and on a day in which a town-meeting is being held, at which he is entitled to vote. 1 R. S. 342 (315), § 10, Edm. ed.

A non-resident witness, or a party to an action residing in another State, is exempt from the service of a summons, when temporarily within this State for the sole purpose of being examined as a witness in an action being or to be tried here. The exemption continues while such witness is attending the court, or coming to, or returning from, the place of trial. Merrill v. George, 23 How. 331; Seaver v. Robinson, 3 Duer, 622; S. C., 12 N. Y. Leg. Obs. 120; and see Time of Service, § 1, ante, 509, service on a part of the defendants. Provisions have been made in the Code for the service of a summons, and for the subsequent

Fees for service-Service by publication.

proceedings in an action against defendants jointly indebted upon a contract. §§136, 375 to 381. A full discussion of the practice and procedure in such cases will be found in its appropriate chapter in a subsequent part of this work. See Revival of Judgment against Joint Debtors.

Section 10. Fees for service. A sheriff is allowed by statute, as a fee for serving a summons, or summons and complaint, or summons and object of action, or any other paper issued in an action, the sum of $1.00. He is also allowed for necessary travel in making such service, the sum of six cents per mile to and from the place of service, to be computed in all cases from the courthouse of the county, and if there are two or more court-houses, to be computed from that nearest to the place of service. These statutory fees are allowed to the sheriffs of all the counties in the State, except the counties of New York, Kings and Westchester. Laws of 1871, ch. 415; Laws of 1872, ch. 26. The sheriff is entitled to his fee of $1.00 for every defendant served. He is also entitled to his fee for going and returning. But this fee applies only to the process itself, and not to the number of defendants named, or who may be served. But one travel fee can be charged on the same process. See Benedict v. Warriner, 14 How. 568. The sheriff may demand these fees in advance, as a condition of making the service. Wait v. Schoonmaker, 15 id. 460. Fees for the service of a summons are not taxable, unless the service was made by the sheriff, in which case they may be taxed in the bill of costs as sheriff's fees. Whipple v. Williams, 4 id. 28; Union India Rubber Co. v. Babcock, 4 Duer, 620; S. C., 1 Abb. 262. If services which the sheriff may perform are performed by private persons, nothing more can properly be charged or allowed in the bill of costs than a reasonable compensation for the services rendered. Nothing can be allowed for constructive traveling or other services, in such cases. Case v. Price, 17 How. 348; S. C., 9 Abb. 111.

ARTICLE III.

SERVICE BY PUBLICATION.

Section 1. When such service is proper. It is a well-settled principle of law that jurisdiction of the person of a defendant cannot be obtained by any court, except by his voluntary

Service by publication.

appearance, or by due service of process. It is equally well settled that, prior to the Code, no effectual service of process could be made on any person beyond the jurisdiction of the court out of which the process issued. Fenton v. Garlick, 8 Johns. 194; Anderson v. Heriot, 4 Cow. 508, 524, note; Fiske v. Anderson, 12 Abb. 8; S. C., 33 Barb. 71; Peck v. Cook, 41 id. 549. But by section 135 of the Code, the publication of a summons and service by mail in pursuance of an order duly obtained from a judge of the court, was made equivalent to personal service. This provision of the Code was an innovation upon the former practice, and is limited to the cases expressly provided for by the statute. Fiske v. Anderson, 12 Abb. 8; S. C., 33 Barb. 71; Peck v. Cook, 41 id. 549; Hallett v. Righters, 13 How. 43.

It is provided by the section of the Code referred to, that whenever it shall appear by affidavit, to the satisfaction of the court or a judge thereof, or a county judge of the county where the trial is to be had, that the person on whom the service of a summons is to be made cannot, after due diligence, be found within the State, and that a cause of action exists against him, 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 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. Code, § 135.

Unknown defendants having a lien upon, or an interest in, mortgaged premises, and whose residence cannot with reasonable

The affidavit to authorize the order.

diligence be found, were, in actions for the foreclosure of mortgages on real estate, included among those subject to the service of a summons under an order for publication, by the amendment of 1860.

Non-resident stockholders, and the personal representatives of deceased stockholders, of insolvent corporations and joint-stock companies, were also added to the class of defendants, included within the provisions of this section, by the act of 1869. Laws of 1869, ch. 157.

The property mentioned in subdivisions 1 and 3 of section 135 of the Code is not property temporarily within the State, and of which, from the nature of the case, there can be no agent or factor or other person in charge, through whom notice of the proceedings could reach the owner. Haight v. Husted, 4 Abb. 348, 351; S. C. affirmed, 5 id. 170; Bates v. New Orleans R. R., 4 id. 72; S. C., 13 How. 516. On the contrary, the property must be such as is liable to attachment under section 227 of the Code. Ib. The importance of this fact will be more clearly understood, on referring to rule 34 of the supreme court, which provides that in actions for the recovery of money only, when the summons has been served by publication under section 135 of the Code, no judgment shall be entered, unless the plaintiff, at the time of making the application, shall show by affidavit that an attachment has been issued in the action and levied upon property belonging to the defendant.

Section 2. The affidavit to authorize the order. The proof requisite to authorize an order for publication must be made by affidavit, and by affidavit only. The return of a sheriff is not sufficient proof of the existence of facts upon which an order may properly issue, nor can these facts be made to appear partly by affidavit and partly by return. Waffle v. Goble, 35 How. 356; S. C., 53 Barb. 517. The affidavit may be made by any person having knowledge of the requisite facts. Ib.

Upon every application for an order that the service of a summons may be made by publication, the applicant must not only show that the case falls within some one of the subdivisions of section 135 of the Code, but he must also establish the central jurisdictional fact that the person on whom the service of the summons is to be made, cannot, after due diligence, be found within the State. The fact of non-residence is of no importance, except as it tends to establish the fact that he is not within the