person to attend before him to testify respecting the matter. If he is satisfied, upon the allegations of the petitioner, or after making the inquiry, that the name of one or more of the persons to be cited, cannot be ascertained with reasonable diligence, the citation may be directed to that person or those persons, by a general designation, showing his, her, or their connection with the decedent, or interest in the property or matter in question; or otherwise sufficiently identifying the person or persons intended. A citation, thus directed, has the same force and effect, as if it was directed to the person or persons intended, by their names; and where the person or persons so intended are duly cited, in any manner prescribed by law, the decree binds them, as if they were named therein. A petition, duly verified, is deemed an affidavit, within the meaning of this section. New in form; 2 R. S. 74, & 26 (2 Edm. 75). 2519. Contents of citation. A citation must be made returnable upon a day certain, designated therein, not more than four months after the date thereof; and must specify whose estate or what subject-matter is in question. The names of all the persons to be cited, as far as they can be ascertained, must be contained in the citation. Where the name, or part of the name, of either of them cannot be ascertained, that fact must be stated in the citation. L. 1837, ch. 460, 27 (4 Edm. 487). 2520. Citation; how served in the State. - Except where special provision is otherwise made by law, service of a citation, within the State, must be made upon an adult person, or an infant of the age of fourteen years or upwards, by delivering a copy thereof to the person to be served, or by leaving a copy at his residence, or the place where he sojourns, with a person of suitableage and discretion, under such circumstances, that the surrogate has good reason to believe that the copy came to his knowledge, in time for him to attend at the return day. A citation must be so served, if within the county of the surrogate or an adjoining county, at least eight days before the return day thereof; if in any other county, at least fifteen days before the return day; unless, in either case, the person served, being an adult, and not incompetent, assents in writing to a service a place or places where the person to be served would probably receive matter transmitted through the post-office, dispenses with the deposit of any paper therein New in form. See 8 440, ante. 2525. [Amended, 1882.] What time required fo delivery of copy, etc.-Where service is made b delivering a copy of the citation without the Stat pursuant to an order made as prescribed in the las section, it must be made, if within the United States at least thirty days, if without the United States, & least forty days, before the return day of the citation Proof of publication, deposit or delivery may be made as prescribed in section 444 of this act. See 22 439, 440, ante; L. 1837, ch. 460, 8; L. 1840, ch. 384, 1 (4 Edu 487); L. 1863, ch 362 (6 Edm. 121); 2 R. S., 61, 62, 32, 34 (2 Edm. 61. Wetmore v. Parker, 52 N. Y. 450; Kellett v. Rathbun, 4 Paige, 102; Bricks Estate, 15 Abb, Pr. 12; Board v. Board, 4 id. 295. § 2526. Service upon a corporation, infant, lunatic, etc.- Service of a citation must be made upon an infant under the age of fourteen years, a person judicially declared to be incompetent to manage his affairs by reason of lunacy, idiocy, or habitual drunkenness, orå corporation, in the manner prescribed for personal serv ice of a summons upon such a person, or upon a corpo ration, in article first of title first of chapter fifth of this act. New in form. L. 1870, ch. 693 (9 Edm. 420); see 28 426, 431 and 432, ante 2527. Id.; upon infant, etc., additional require ment in certain cases. Where a person, cited or to be cited, is an infant of the age of fourteen years or upwards, or where the surrogate has, in his opinion, reasonable grounds to believe, that a person, cited or to be cited, is an habitual drunkard, or for any cause ment ally incapable adequately to protect his rights, although mot judicially declared to be incompetent to manage his affairs, the surrogate may, in his discretion, with or without an application therefor, and in the interest of that person, make an order requiring that a copy of the citation be delivered, in behalf of that person, to a person designated in the order; and that service of the citation shall not be deemed complete until such deliv. ery. Where the person, cited or to be cited, is an infant under the age of fourteen years, or a person judicially declared to be incompetent to manage his affairs, by reason of lunacy, idiocy, or habitual drunkenness, and the surrogate has reasonable ground to believe that the interest of the person, to whom a copy of the citation was delivered, in behalf of the infant or incompetent person, is adverse to that of the infant or incompetent person, or that for any reason, he is not a fit person, to protect the latter's rights, the surrogate may likewise make such an order; and as a part thereof, or by a separate order, made in like manner at any stage of the proceedings, he may appoint a special guardian ad litem to conduct the proceedings in behalf of the incompetent person, to the exclusion of the committee, and with the same powers, and subject to the same liabili. ties, as a committee of the property. New in form. L. 1872, ch. 693 (9 Edm. 420). § 2528. Appearance; how made, and effect thereof. In a surrogate's court, a party of full age may, unless he has been judicially declared to be incompetent to manage his affairs, prosecute or defend a special proceeding, in person or by an attorney regularly admitted, to practice in the courts of record, at his election ; except in a proceeding to punish him for a contempt, or where he is required to appear in person, by special provision in law, or by a special order of the surrogate. The appearance of a party, against whom a citation has been issued, has the same effect, as the appearance of a defendant, in an action brought in the supreme court. L. 1870, ch. 359, 22; see 28 55, 424, 796-802, ante. Weller v. Suggett, 3 Redf. 250; Kellett v. Rathbun, 4 Paige, 102. § 2529. Surrogate's father or son not to practice before him. A surrogate's father or son shall not prac tice or be employed as attorney or counsel, in any case, in which his partner or clerk is prohibited by law from so practicing, or being employed. L. 1844, ch. 300, 4 (4 Edm. 697); see 50, ante. § 2530. Special guardian; when to be appointedWhere a party, who is an infant, does not appear by his general guardian ; or where a party, who is a lun tic, idiot or habitual drunkard, does not appear by his committee, the surrogate must appoint a competent and responsible person, to appear as special guardian for that party. Where an infant appears by his gener guardian, or where a lunatic, idiot, or habitual drunkard, appears by his committee, the surrogate must in quire into the facts, and must, in like manner, appoint a special guardian, if there is any ground to suppose that the interest of the general guardian or committee is adverse to that of the infant, or incompetent person: or that, for any other reason, the interests of the latter require the appointment of a special guardian. A per son cannot be appointed such a special guardian, unless his written consent is filed, at or before the time of entering the order appointing him. See 2 R. S. 100, 3 (2 Edm. 104), amended; L. 1837, ch. 460, 38 (4 Edn. 494): L. 1863, ch. 362, 6 (6 Edm. 126); L. 1870, ch. 170, 4 (7 Edm. 665); L. 1872, ch. 693, 2 (9 Edm. 421). Havens v. Sherman, 42 Barb. 63; Bloom v. Burdick, 1 Hill, 130; Schneider r. McFarland. 2 N. Y. 459; Ac ley v. Dygert, 33 Barb. 176: Matter of Lockman, 4 Abb. N. C. 173; 8. Gunning v. Lockman, 3 Redf. 273; Brick's Estate, 2 Abb. 12; Saltus' Estate, I Tuck. 230; s. c., 3 Keyes, 500; Chittenden's Will, 1 Tuck-251; Spicer's Will, id. 80; Hunt's Estate, id. 55; Ex parte Lochman, 4 Abb. N. C. 173. 2531. Notice of proceedings to appoint special guardian. Where a person, other than the infant, or the committee of the incompetent person, applies for the appointment of a special guardian, as prescribed in the last section, at least eight days' notice of the ap plication must be personally served upon the infant, or incompetent person, if he is within the State, and also upon the committee, if any, in like manner as a citation is required by law to be served. specified in title fifth of this chapter, the surrogate may, But except in a case by an order to show cause, prescribe a shorter time, and direct the service of the order to be made in such a manner as he deems proper. made at the time of presenting the petition, and, in The application may be that case, the order to show cause may, in the surrogate's discretion, accompany the citation. 2 R. S. 100, 4 (2 Edm. 104); L. 1837, ch. 460, 237 (4 Edm. 494), amended. See Kellett v. Rathbun, 4 Paige, 102; White v. Pomeroy, 7 Barb. 640. § 2532. Proof of service of citation, subpœna, etc.— Proof of service of a citation, or a subpoena, issued from a surrogate's court, must be made in the manner prescribed by law, for proof of service of a summons issued out of the supreme court. In every other case, proof of service must be made by affidavit; or, where the person served is of full age and not incompetent, by a written admission signed by him, accompanied with proof, by affidavit or otherwise, of the genuineness of his signa ture. 2R. S. 228, 29 (2 Edm. 232); L. 1837, ch. 460, 89 (4 Edm. 488). Wetmore v. Parker, 2 Lans. 121; s. c., 52 N. Y. 450. § 2533. Written pleadings may be required.— The surrogate may, at any time, require a party to file a written petition or answer, containing a plain and concise statement of the facts constituting his claim, objection or defence, and a demand of the decree, order, or other relief, to which he supposes himself to be entitled. The surrogate may require the petition or answer to be verified, and a copy thereof to be served upon any other person interested. A party who fails to comply with such requirement may be treated as a party in default. Except where such a requirement is made, or in a case where a written petition is expressly required by this act, a petition, or the answer thereto, may be presented orally; in which case, the substance thereof must be entered in the records of the courts. New. Foster v. Wilber, 1 Paige, 537; Smith v. Remington, 42 Barb. 75; see Colgrove v. Horton, 11 Paige, 261. § 2534. Verification thereof. The provisions of sections 523, 524, 525, and 526 of this act apply to a verification made pursuant to this chapter, and to the petition or other paper so verified, where they can be so applied in substance, without regard to the form of the proceeding. ઢ New. See 2749, post. See Colgrove v. Horton, 11 Paige, 261. 2535. Publication of citation, etc.-- Where a provision of this chapter, or an order made pursuant to such a provision, directs the publication of a citation, notice or other paper, or the service thereof by publication, the publication must be made in a newspaper published in the county. The surrogate may, also, in his discretion, direct the publication thereof in any |