TITLE V. Manner of Commencing Civil Actions. SECTION 127. Actions, how commenced. 128. Summons, requisites of. 129. Notice to be inserted in summons. 130. Complaint need not be served with summons. 132. Notice of lis pendens. 133. Summons, by whom served. 134. 135. Service of summons. Publication of summons. 136. Proceedings when part only of defendants served. 138. Proof of service. 139. When jurisdiction of action acquired. § 127. Actions, how commenced. Civil actions in the courts of record of this State shall be commenced by the service of a summons. a. The only mode of commencing an action under this code is by summors (§§ 99, 127), or the obtaining a provisional remedy (3 139; Er parte Ransom, 3 Code Rep. 148; Moore v. Thayer, ib. 176; Treadwell v. Lawlor, 15 How. 8). There is no other mode of bringing a party into court against his will, except by the service of a summons (Akin v. Albany North. R. R. Co. 14 How. 337; and see O'Hara v. Brophy, 24 id. 383). b. The action should not be commenced until the cause of action has accrued (Smith v. Holmes, 19 N. Y. 271; McCullough v. Colby, 4 Bosw. 603; Wiggins v. Orser, 5 Duer, 118; Oothout v. Ballard, 41 Barb. 33; Smith v. Aylesworth, 40 Barb. 104). See section 139, post. § 128. (Am'd 1870.) Summons, requisites of. The summons shall be subscribed by an attorney, and directed to the defendant, and shall require 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. c. Name of the court, &c.-In all cases, the summons must state the name of the court in which the action is brought (Dix v. Palmer, 5 How. 233; James v. Kirkpatrick, 5 How. 241). Where the summons was served without a copy of the complaint and without the name of any court appearing thereon, the defendant demanded a copy of the complaint, and one was served entitled "Sup. Court." On motion to set aside the proceedings, it was held that the name of the court sufficiently appeared; and the plaintiff was allowed to amend by entitling the summons and complaint in the "Supreme Court" (Walker v. Hubbard, 4 How. 154). The place of trial named in the complaint was not the city of New York. Where a summons was served which did not mention the name of any court (and without any copy of the complaint), the defendant disregarded it, and the plaintiff took judgment for want of an answer, the court set the judgment aside, and without requiring the defendant to put in an affidavit of merits (James v. Kirkpatrick, 5 How. 241; Croden v. Drew, 3 Duer, 654); where, after a summons was served without any copy of the complaint, and without naming any court, the defendant gave a general notice of appearance, it was held that he thereby waived the defect in the summons (Dix v. Palmer, 5 How. 233; Webb v. Mott, 6 id. 439); and all other irregularities on the face of the summons (Voorhies v. Schofield, 7 How. 51; and see Baxter v. Arnold, 9 How. 445). a. Amending Summons.--A mistake in the form of a summons has been held not within § 172 (Dibblee v. Mason, 1 Code R. 37). Although the court may have the power to amend the summons, it could only be done on motion to amend it (McCrane v. Moulton, 3 Sand. 736; Allen v. Allen, 14 How. 248). b. Misnomer.-It seems that if there is a misnomer of the defendant (except in cases coming within section 175) in the summons, a motion to set aside for that reason can not be entertained (Miller v. Stettiner, 7 Bosw. 692; 22 How. 518; Traver v. Eighth Ave. R. R. Co. 3 Trans. Ap. 203; 6 Abb. N. S. 46; see Moulton v. de ma Carty, 6 Rob. 470; Cooper v. Burr, 45 Barb. 10; B'k of Havana v. McGee, 20 N. Y. 362, and note to § 142, subd. 1, Names of Parties). c. Subscription.-The attorney mentioned means an attorney-at-law (Weare v. Slocum, 3 How. 397). Where an infant was plaintiff, and sued by guardian, it was held that the attorney conducting the suit might subscribe the summons (Hill v. Thacter, 3 How. 407). The name of the attorney being printed on the summons is sufficient (Mut. Life Ins. Co. v. Ross, 10 Abb. 260, n; Saunderson v. Jackson, 3 Esp. 180; 2 B. & P. 238; Schneider v. Norris, 2 M. & S. 286; Barnard v. Heydrick, 2 Abb. N. S. 47; see B'k of Cooperstown v. Woods, 28 N. Y. 546). Where the summons is signed by the firm-name of two attorneys, who are in partnership, and the complaint and subsequent proceedings are signed with the individual name of one of such attorneys only, the court may, after judgment, amend the summons by substituting the individual name of the attorney for such firm name (Sluyter v. Smith, 2 Bosw. 673). d. After answer of title.-Where, after an answer of title in a justice's court, an action for the same cause of action is commenced in the supreme or a county court, the summons should allude to the suit before the justice by some suitable averment (Royce v. Brown, 3 How. 391). But its omitting to do so is not such an irregularity as will entitle the defendant to move to set it aside. e. Representative character.-It is presumed that where a party sues or is sued, in a representative character, the character in which he sues should be stated after his name in the summons (1 Arch. Pl. 81); as, whether he sues as trustee, executor, or how otherwise (8 How. 84). -;" f. Action against county.-In an action against a county, the defendants should be described as "the Board of Supervisors of the county ofbut in an action against the supervisors, the defendants should be described by their individual names, and by their name of office (Wild v. B'd of Supervisors of Columbia, 9 How. 315). Where, in an action, the defendants are described as "The Board of Supervisors," the court will intend the action is against the county (ib.) 9. Penal action.-In action to recover a penalty or forfeiture, the summons should be endorsed with a general reference to the statute giving the penalty (2 R. S. 481, § 7; 17 Wend. 86; 4 Denio, 269). A reference to the statute, as "of the internal police of the State," held not sufficient (Avery v. Slack, 17 Wend. 85). An indorsement, "issued according to the provisions of the statute concerning the incorporation of turnpike and plank-road companies, and the collection of penalties for the demanding and receiving more than lawful toll in passing through toll gates on such roads," held sufficient (Marselis v. Seaman, 21 Barb. 319); and in an action to recover penalties for violating the excise law, it is a sufficient indorsement that such summons is issued "according to the provisions of tit. 9, pt. 1, ch. 20 of the statute of excise and the regulation of taverns and groceries" (Perry v. Tynen, 22 Barb. 137; and see Andrews v. Harrington, 10 id. 343; B'd of Excise v. Doherty, 16 How. 46; Sprague v. Irwin, 27 How. 51). a. Other cases.-For the form of the summons when served without any copy of the complaint, see section 130; and when served by publication, see section 135. § 129. (Am'd 1849.) Notice to be inserted in summons. The plaintiff shall also insert in the summons a notice, in substance as follows: 1. In an action arising on contract, for the recovery of 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. b. Construction of section.-The phrase, " for the recovery of money only," means the recovery of a definite sum of money as such, and without calling upon the court to ascertain anything but the existence or terms of the contract by which it accrued due (Tuttle v. Smith, 14 How. 395; 6 Abb. 329). An action that requires the determination of amounts unliquidated in their nature, requiring other proof, and depending upon other considerations than such as appear in the contract itself, is not to be deemed an action for the recovery of money only, but rather an action to establish and ascertain the plaintiff's right to damages, which are to be paid in money (id.) The actions referred to in the first division "are actions at law, properly so called, in which, from the nature of the contract, the plaintiff knows and can specify the sum he is entitled to recover" (West v. Brewster, 1 Duer, 647). "Subdivision 1 ought only to be applied to those contracts which in terms provide for the payment of money" (Hyde Park v. Teller, 8 How. 504; and see The People v. Bennett, 6 Abb. 343; Durant v. Gardner, 10 Abb. 445; Munger v. Hess, 28 Barb. 75, and infra). c. Actions within subdivision 1.-An action to recover a penalty given by statute (The People v. Bennett, 5 Abb. 384; 6 id. 343; Comm'rs of Albany v. Classon, 17 How. 193). d. For goods sold and delivered (Diblee v. Mason, 1 Code Rep. 37; Champlin v. Deitz, 37 How. 214.) e. To recover $200, as liquidated damages on the breach of a contract (Hyde Park v. Teller, 8 How. 504). f. Where the complaint set up a contract and breach, and prayed judgment for a specific sum (Croden v. Drew, 3 Duer, 654). g. For damages for death of one by wrongful act (Doedt v. Wiswall, 15 How. 128). h. Against sureties on an undertaking given pursuant to section 209 of the Code (Montegriffo v. Mustie, 1 Daly, 77; see Kelsey v. Covert, 15 How. 92). i. Actions within subdivision 2.—An action on the common-law liability of an inn-keeper (The People v. Willett, 6 Abb. 37). j. Against an attorney for an account of moneys collected by him (West v. Brewster, 1 Duer, 647). a. To recover money, where the complaint also seeks to vacate an agreement extending the time of payment, for fraud, and to obtain an immediate judgment for the whole demand (Travis v. Tobias, 7 How. 90). b. To recover money where the complaint charges fraud (Field v. Morse, 7 How. 12). e. For wrongfully taking, detaining, and converting personal property (Voorhies v. Schofield, 7 How. 51). d. To recover unliquidated damages (Croden v. Drew, 3 Duer, 654; Tuttle v. Smith, 14 How. 395; 6 Abb. 329; The People v. Bennett, 6 Abb. 343; Salters v. Ralph, 15 Abb. 273; Garrison v. Carr, 3 Abb. N. S. 366); as on an undertaking of bail (Levy v. Nicholas, 15 Abb. 63; Kelsey v. Covert, 15 How. 92); breaches of covenant in a lease (Colb v. Dunkin, 19 How. 164; Luling v. Stanton, 8 Abb. 378; 2 Hilton, 538); for liquidated and unliquidated damages, as for goods sold, and for not receiving goods on consignment pursuant to contract (Norton v. Cary, 14 Abb. 364; 23 How. 469). e. To recover damages for fraud, as for damages for inducing plaintiff, by false pretenses, to buy a worthless note (Hartshorne v. Newman, 15 Abb. 63), or to perform services (Atwell v. Le Roy, 4 Abb. 438). f. To recover damages for the breach of a contract to convey a farm and personal property (Johnson v. Paul, 14 How. 454). g. For the breach of a contract of warranty upon an exchange of horses (Dunn v. Bloomingdale, 14 How. 474; 6 Abb. 340, n). Bates, 6 Abb. 15; Mc h. For the breach of a contract to marry (Davis v. Donald v. Walsh, 5 id. 68; M'Neff v. Short, 14 How. 463). i. Against a carrier for the loss of goods entrusted to him to carry (Flynn v. Hudson R. R. Company, 6 How. 308; Hyde Park v. Teller, 8 id. 504; Hewett v. Howell, id. 346; Clor v. Mallory, 1 Code Rep. 126; Campbell v. Perkins, 8 N. Y. 438; Zabriskie v. Smith, 13 N. Y. 333). j. All cases where the action is not upon a money demand or obligation for the payment of money (Hemson v. Decker, 29 How. 385; and see McDougall v. Cooper, 31 N. Y. 498; Goff v. Edgerton, 18 Abb. 381; Willett v. Stewart, 43 Barb. 98). k. What is a sufficient notice.-A notice, in a summons under the first subdivision, that the plaintiff will take judgment for a given sum "with interest" thereon from a specified day, is a sufficient compliance with the provisions here contained; and while the legal rate of interest is seven per cent., that will be the rate assumed where not otherwise specified (Swift v. De Witt, 3 How. 280, 282). The summons must follow one or the other of the forms prescribed (Ridder v. Whitlock, 12 How. 208); it cannot follow both, and if it does it will be irregular (Baxter v. Arnold, 9 How. 445). As the summons is the first proceeding in the action, and all subsequent proceedings are supposed to be based upon it, if the complaint does not conform to the summons it is the complaint and not the summons which is irregular (Boington v. Lapham, 14 How. 360; Tuttle v. Smith, id. 395; 6 Abb. 329; Shafer v. Humphrey, 15 How. 564; Ridder v. Whitlock, 12 id. 208; Davis v. Bates, 6 Abb. 15). See, in note to section 142, subd. 1, post: Complaint must agree with summons as to cause of action. § 130. (Am'd 1849, 1851.) Service of complaint. A copy of the complaint need not be served with the summons. In such case, the summons must state where the complaint is or will be filed; and if the defendant, within twenty days thereafter, causes notice of appearance to be given, and, in person or by attorney, demands in writing a copy of the complaint, specifying a place within the State where it may be served, a copy thereof must, within twenty days thereafter, be served accordingly; and after such service, the defendant has twenty days to answer; but only one copy need be served on the same attorney. a. Form of summons.—A summons served without any copy of the complaint is irregular unless it states the complaint was or will be filed (Pignolet v. Daveau, 2 Hilton, 584). If the summons state that a copy of the complaint has been filed, instead of stating that the complaint has been filed, it is not such an irregularity as will vitiate a judgment entered for default of answer (Hart v. Kremer, 2 Code Rep. 50). If the complaint is filed, and no copy is served with the summons, and the summons, instead of stating where the complaint is filed, states that a copy of the complaint "is annexed," the summons will be irregular (Keeler v. Belts, 3 Code Rep. 183). Where the summons is in the form appropriate for serving the copy complaint together with the copy summons, the omission to serve a copy of the complaint, or to state in the summons the place of filing the complaint, although irregular, does not affect the validity of the judgment (Foster v. Wood, 1 Abb. N. S. 150; 30 How. 284). b. Copy complaint to be served.-The only case in which the defendant can demand a copy of the complaint is where there has been personal service of the summons, but no copy of the complaint has been served with it; and where a defendant has been served by publication, and a copy of the summons and complaint has been mailed to him, he is not entitled as of course to demand a copy of the complaint to be served on him (Mackay v. Laidlaw, 13 How. 129). In such a case the complaint is on file, the defendant can obtain a copy. If the defendant does not demand a copy of the complaint within twenty days after service of the summons, the plaintiff is not obliged to serve a copy (Engs v. Overing, 2 Code R. 79; Bennett v. Delicker, 3 ib. 117). But in such a case, the court, on motion of the defendant, may order a copy to be served; and although it may require the defendant to pay the costs of motion, it will not oblige him to swear to merits (id) c. Several persons may be named in the summons, and the plaintiff may deliver a complaint against only the one upon whom the process is served, omitting the names of the other defendants mentioned in the summons (Travis v. Tobias, 7 How. 90). d. Demand of copy complaint.-A notice of appearance to which was added, "and I require all papers to be served on me at my office, 11 Wall st.," was held a sufficient demand of copy complaint (Ferris v. Soley, 23 How. 422; Walsh v. Kursheedt, 8 Abb. 418). e. Within what time copy complaint to be served.—Where a demand of a copy of the complaint was served for one defendant on 1 November, and by the same attorney for another defendant on 9 November, it was held that the plaintiff was bound to serve a copy of the complaint within twenty days of the first demand (Luce v. Tempert, 9 How. 212). f. Time to serve copy complaint may be enlarged.-After a demand of a copy of the complaint duly made, the plaintiff may, on showing ground therefor, obtain further time to furnish a copy of the complaint (Littlefield v. Merwin, 4 How. 306). But such order cannot be granted ex parte, after the time for serving the complaint has expired (Stephens v. Moore, 4 Sand. 674). As to dismissing a complaint for not serving copy, see section 274, post. g. Time to answer after copy complaint served.—After the complaint is served pursuant to a demand, the defendant must answer in twenty days, or within such further time as he may obtain by order (Mandeville v. Winn, 5 How. 461; McGown v. Leavenworth, 2 E. D. Smith, 24; and see section 143, post). h. Where a defendant was served with summons, and subsequently by the |