commenced by the service of a summons.(1) But from the time of the granting of a provisional remedy, the court acquires jurisdiction, and has control of all the subsequent proceedings. Nevertheless, jurisdiction thus acquired is conditional, and liable to be divested, in a case where the jurisdiction of the court is made dependent, by a special provision of law, upon some act, to be done after the granting of the provisional remedy.(2)

Co. Proc., part of 127, and id., 139. See 399, ante, and 721, $21, 822, and 824, post. (1) Akin v. Albany, etc., R. R. Co., 14 How. 337; O'Hara v. Brophy, 24 id. 383; Leitch v. Wells, 48 N. Y. 585; Gibbs . Queens Ins. Co., 63 id. 114: O'Brien v. Commercial Ins. Co., 38 N. Y. Supr. 517. (2) Waffle v. Goble, 53 Barb. 517.

S417. [Amended, 1879.] Requisites of summons.— The summons must contain the title of the action, specifying the court in which the action is brought,(1) the names of the parties to the action,(2) and, if it is brought in the supreme court, the name of the county in which the plaintiff desires the trial;(3) and it must be subscribed by the plaintiff's attorney ;(4) who must add to his signature his office address, specifying a place within the State where there is a post-office. If in a city, he must add the street, and street number, if any, or other suitable designation of the particular locality.(5)

Id., 128, remodelled. (1) Dix v. Palmer, 5 How. 233; James v. Kirkpatrick, id. 241; Walker v. Ilubbard, 4 id. 154; Croden v. Drew, 3 Duer, 654; Webb v. Mott, 6 How. 439. (2) Miller v. Stettiner, 7 Bosw. 692; 8. c., 22 How. 518; Traver v. Eighth Ave. R. R. Co., 6 Abb. N. S. 46; Cooper v. Burr, 45 Barb. 10; Bank v. McGee, 20 N. Y. 355; Hill v. Thacter, 3 How. 407; Eagleston v. Son, 5 Robt. €40. (3) Merrill e. Grinnell, 10 How. 32; Hotchkiss v. Crocker, 15 id. 336; Davison r. Powell, 13 id. 288. (4) See ante, 55. Johnston v. Winter, 7 Alb. L. J. 135; Weare v. Slocum, 3 How. 397; Mut. Life Ins. Co. v. Ross, 10 Abb. 260. (5) Sup. Rule 13. Hurd e. Davis, 13 How. 57; Yorkes v. Peck, 17 id. 192; Demelt v. Leonard, 19 id. 182.

§ 418. [Amended, 1877.] Form of summons. - The summons, exclusive of the title of the action and the subscription, must be substantially in the following form, the blanks being properly filled:

"To the above named defendant: You are hereby summoned to answer the complaint in this action, and to serve a copy of your answer on the plaintiff's attorney within twenty days after the service of this summons, exclusive of the day of service; and in case of your failure to appear or answer, judgment will be taken against you by default, for the relief demanded in the complaint. Dated

The summons is deemed the mandate of the court. See Co. Proc., 129.

$419. [Amended, 1879.] Service of copy complaint or notice with summons; consequence of failure. A copy of the complaint may be served with the summons. If a copy of the complaint is not served with the summons, the plaintiff cannot take judgment by default without application to the court, unless either the defendant appears, or by a notice is served with the summons, stating the sum of money for which judgment will be taken, and the case is one embraced in the next section.

14. See McCoun v. N. Y. C., etc., 50 N. Y. 176; Ledwich v. McKim, 63 d. 307.

§ 420. [Amended, 1877.] Cases where such service must be made. — Judgment may be taken without application to the court, where the complaint sets forth one or more causes of action, each consisting of the breach of an express contract to pay, absolutely or upon a contingency, a sum or sums of money, fixed by the terms of the contract, or capable of being ascertained therefrom, by computation only; or an express or implied contract to pay money received or disbursed, or the value of property delivered, or of services rendered by, to, or for the use of, the defendant or a third person; and thereupon demands judgment for a sum of money only. This section includes a case, where the breach of the contract, set forth in the complaint, is only partial; or where the complaint shows that the amount of the plaintiff's demand has been reduced by payment, counterclaim, or other credit.

Id. See McCoun v. N. Y. C., etc., 50 N. Y. 176; Ledwich v. McKim, 53 d. 307: Vilmar v. Schall, 61 id. 561; Ross v. Terry, 63 id. 613: Taylor e. Root, 4 Abb. Dec. 382. "Implied" contracts: Homan v. Earle, 13 Abb. N. 8. 402.

$421. Appearance of defendant. The defendant's appearance must be made by serving upon the plaintiff's attorney, within twenty days after service of the summons, exclusive of the day of service, a notice of appearance, or a copy of a demurrer or of an answer. A notice or pleading, so served, must be subscribed by the defendant's attorney, who must add to his signature his office address, with the particulars prescribed

in section 417 of this act, concerning the office address of the plaintiff's attorney.

See Sup. Ct. Rule 14. Cooley v. Lawrence, 12 How. 176; Quin v. Tilton, 2 Duer, 648; Kelsey v. Covert, 15 How. 92; Hunt v. Brennan, 1 Hun, 213; Ogdensburgh, etc., v. Vermont, etc., 16 Abb. N. S. 249; Brett v. Brown, 13 id. 295.

§ 422. [Amended, 1877.] When defendant must answer before time to appear expires. A defendant, upon whom the plaintiff has served, with the summons, a copy of the complaint, must serve a copy of his demurrer or answer upon the plaintiff's attorney, before the expiration of the time, within which the summons requires him to answer. (1) If a copy of the complaint is not so served, a notice of appearance entitles him only to notice of the subsequent proceedings, unless within the same time he demands the service of a copy of the complaint as prescribed in section four hundred and seventy-nine of this act.(2)

See Co. Proc., 130 and 143. (1) Mandeville r. Winne, 5 How. 461; McGown v. Leavenworth, 2 E. D. Smith, 24; Phillips v. Prescott, 9 How. 433; Lord v. Vandenburgh, 15 id. 368. (2) Ferris v. Soley, 23 How. 422; Walsh v. Kursheedt, 8 Abb. 418.

$423. [Amended, 1877.] Notice of no personal claim; effect of service thereof. Where a personal claim is not made against a defendant, a notice, sub, scribed by the plaintiff's 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 a personal claim is not made against him, may be served with the summons. If the defendant so served, unreasonably defends the action, costs may be awarded against him.

Id.. 131. O'Hara v. Brophy, 24 How. 379; Benedict v. Warriner, 14 1d. 570; Gallagher v. Egan, 2 Sandf. 742.

424. Effect of voluntary appearance. - A voluntary general appearance of the defendant is equivalent to personal service of the summons upon him.

Id., part of 139. See Brett v. Brown, 13 Abb. N. S. 295; Ferguson e. Crawford, 7 Hun, 25; Tracy r. Reynolds, 7 How. 327; Wheelock v. Lee, 15 Abb. N. S. 24; Allen v. Malcolm, 12 id. 335; Mors e. Stanton, 51 N. Y. 649.

§ 425. Summons; when and by whom served. Sheriff's duty. - The summons may be served by any person, other than a party to the action, except where it is otherwise specially prescribed by law. The plain

tiff's attorney may, by an indorsement on the summons, fix a time within which the service thereof must be made in that case, the service cannot be made afterwards. Where a summons is delivered for service to the sheriff of the county, wherein the defendant is found, the sheriff must serve it, and return it, with proof of service, to the plaintiff's attorney, with reasonable diligence.

Co. Proc., 133, am'd. Myers v. Overton, 2 Abb. 344; Hunter v. Lester, 18 How. 347; s. c., 10 Abb. 260. Compelling return: see Sup. Ct. Rule 10.

426. [Amended, 1879.] How personal service of summons made upon a natural person. Personal service of the summons upon a defendant, being a natural person, must be made by delivering 'a copy thereof, within the State, as follows:

1. If the defendant is an infant, under the age of fourteen years, to the infant in person, and also to his father, mother or guardian; or, if there is none within the State, to the person having the care and control of him, or with whom he resides, or in whose service he is employed.

2. If the defendant is a person judicially declared to be incompetent to manage his affairs, in consequence of lunacy, idiocy, or habitual drunkenness, and for whom a committee has been appointed, to the committee, and also to the defendant in person.(1)

3. If the action is against a sheriff, for a cause specified in section one hundred and fifty-eight of this act, by delivering it to the defendant in person, or to his under-sheriff in person, or at the office of the sheriff during the hours when it is required by law to be kept open, to a deputy-sheriff or a clerk in the employment of the sheriff, or other person in charge of the office.

4. In any other case, to the defendant in person.(2)

Id., 134, subd. 2, 3, and 4. (1) Heller v. Heller, 6 How. 194; Rogers . McLean, 11 Abb. 440; aff'd, 34 N. Y. 536; Soverhill v. Dickson, a How. 109. (2) Watson v. Church, 5 T. & C. 243; s. c., 3 Hun, 80; Lathrop r. Heacock, 4 Lans. 1; Foot v. Lathrop, 53 Barb. 183.

of infancy, or lunacy, If the defendant is an

§ 427. Id.; in certain cases etc., not judicially declared. infant of the age of fourteen years, or upwards, or if the court has, in its opinion, reasonable ground to believe, that the defendant, by reason of habitual drunkenness, or for any other cause, is mentally incapable adequately to protect his rights, although not judicially declared to be incompetent to manage his affairs, the court may, in its discretion, with or without an application therefor, and in the defendant's interest, make an order, requiring a copy of the summons to be also delivered, in behalf of the defendant, to a person desig

nated in the order, and that service of the summons shall not be deemed complete, until it is so delivered.

New.

$428. The same.— - In a case specified in subdivision first or second of section four hundred and twentysix of this act, where the court has, in its opinion, reasonable ground to believe that the interest of the person, other than the defendant, to whom a copy of the summons has been delivered, is adverse to that of the defendant, or that, for any reason, he is not a fit person to protect the rights of the defendant, it may likewise make an order, as prescribed in the last section. In a case specified in subdivision second, the court may, as a part of the same order, or by a separate order, made, in like manner and upon like ground, at any stage of the action, appoint a special guardian ad litem to conduct the defence for the incompetent defendant, to the exclusion of the committee, and with the same powers, and subject to the same liabilities, as a committee of the property.

New.

§ 429. Id.; when delivery of copy to lunatic dispensed with. - Where the defendant has been judicially declared to be incompetent to manage his affairs, in consequence of lunacy, and it appears satisfactorily to the court, by affidavit, that the delivery of a copy of the summons to him, in person, will tend to aggravate his disorder, or to lessen the probability of his recov ery, the court may make an order, dispensing with such delivery. In that case a delivery of a copy of the summons, to a committee duly appointed for him, is sufficient personal service upon the defendant.

New.

430. Designation, by a resident, or a person upon whom to serve a summons during his absence; effect and revocation thereof. A resident of the State, of full age, may execute, under his hand, and acknowledge, in the manner required by law to entitle a deed to be recorded, a written designation of another resident of the State, as a person upon whom to serve a summons, or any process or other paper for the commencement of a civil special proceeding, in any court or before any officer, during the absence from the United States of