except that the words,

the summons, in all respects like the notice required by the last section, without the State of New York," must be subby publication."

stituted for the words,

Am'd by ch. 416 of 1877.

§ 444. Proof of service.

Proof of the publication of the summons and notice must be made by the affidavit of the printer or publisher, or his foreman or principal clerk. Proof of deposit in the post-office, or of delivery, of a paper required to be deposited or delivered by the provisions of this article, must be made by the affidavit of the person, who deposited or delivered it.

From Co. Proc. § 138.

§ 445. Defendant when allowed to defend.

Where the summons is served, pursuant to an order made as prescribed in this article, and the defendant so served does not appear, he, or his representative, on application and sufficient cause shown, at any ime before final judgment, must be allowed to defend the action; and, except in an action for divorce, or wherein the contrary is expressly prescribed by law, the defendant, or his representative, must, in like manner, upon good cause shown, and upon just terms, be allowed to defend, after final judgment, at any time within one year after personal service of written notice thereof; or, if such a notice has not been served, within seven years after the filing of the judgment-roll. If the defence is successful, and the judgment, or any part thereof, has been collected or otherwise enforced, such restitution may thereupon be compelled as the court directs; but the title to property sold to a purchaser in good faith, pursuant to a direction contained in the judgment, or by virtue of an execution issued upon the same, shall not be affected thereby.

From Co. Proc. § 135.

Am'd by ch. 416 of 1877.

TITLE II.

Parties to an action.

ARTICLE 1. Parties generally.

2. Parties severally liable.

3. Parties prosecuting and defending as poor persons.

4. Infant plaintiffs and defendants.

ARTICLE FIRST.

Parties Generally.

SEC. 446. Who may be joined as plaintiffs.

447. Id. ; as defendants.

448. Parties united in interest, when to be joined; when one or more may sue or defend for the whole.

449. Party in interest to sue. Trustee, etc., may sue alone.

450. When married woman is a party.

451. When defendant or his name is unknown.

452. When court to decide controversy, or to order other parties to be brought in.

453. Supplemental summons.

§ 446. Who may be joined as plaintiffs.

All persons having an interest in the subject of the action, and in obtaining the judgment demanded, may be joined as plaintiffs, except as otherwise expressly prescribed in this act.

From Co. Proc. § 117.

See §§ 1500, 1919, 3347, sub. 3.

§ 447. Idem; as defendants.

Any person may be made a defendant who has or claims an interest in the controversy, adverse to the plaintiff, or who is a necessary party defendant, for the complete determination or settlement of a question involved therein, except as otherwise expressly prescribed in this act. In any action brought, affecting real estate upon which the people of the state of New York have or claim to have a lien, under the transfer tax act, the said people of the state of New York may be made a party defendant, in the same manner as a private person. In such a case the summons must be served on the attorney-general, who may appear in behalf of the people. From Co. Proc. § 118.

Am'd by ch. 609 of 1901.

See §§ 1503, 1919.

§ 448. Parties united in interest, when to be joined; when one or more may sue or defend for the whole.

Of the parties to the action, those who are united in interest must be joined as plaintiffs or defendants, except as otherwise expressly prescribed in this act. But if the consent of any one, who ought to be joined as a plaintiff, cannot be obtained, he may be made a defendant, the reason therefor being stated in the complaint. And where the question is one of a common or general interest of many persons; or where the persons, who might be made parties, are very numerous, and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of all.

From Co. Proc. § 119.

See §§ 1919, 1945, 1946.

§ 449. Party in interest to sue, trustee, etc., may sue alone. Every action must be prosecuted in the name of the real party in interest, except that an executor or administrator, a trustee of an express

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trust, or a person expressly authorized by statute, may sue, without joining with him the person for whose benefit the action is prosecuted. A person, with whom or in whose name, a contract is made for the benefit of another, is a trustee of an express trust, within the meaning of this section.

From Co. Proc. part of § 111, and all of § 113.

Am'd by ch. 416 of 1877.

See § 3347, sub. 3.

§ 450. When married woman is a party.

In an action or special proceeding a married woman appears, prosecutes or defends alone or joined with other parties as if she was single. It is not necessary or proper to join her husband with her as a party in any action or special proceeding affecting her separate property. The husband is not a necessary or proper party to an action or special proceeding to recover damages to the person, estate or character of his wife, and all sums that may be recovered in such actions or special proceedings shall be the separate property of the wife. The husband is not a necessary or proper party to an action or special proceeding to recover damages to the person, estate or character of another on account of the wrongful acts of his wife committed without his instigation.

From Co. Proc. § 114.

Am'd by ch. 416 of 1877; ch. 542 of 1879, and ch. 248 of 1890.

See Domestic Relations Law, ch. 272 of 1896, §§ 20-29.

See also, § 3347, sub. 3, post.

§ 451. When defendant or his name is unknown. Where the plaintiff is ignorant of the name or part of the name of a defendant, he may designate that defendant, in the summons, and in any other process or proceeding in the action, by a fictitious name, or by as much of his name as is known, adding a description, identifying the person intended. Where the plaintiff demands judgment against an unknown person, he may designate that person as unknown, adding ȧ description, tending to identify him. In either case, the person intended is thereupon regarded as a defendant in the action, and as sufficiently described therein, for all purposes, including service of the summons, as prescribed in article second of the last title. When the name, or the remainder of the name, or the person, bcomes known, an order must be made by the court, upon such notice and such terms as it prescribes, that the proceedings already taken be deemed amended, by the insertion of the true name, in place of the fictitious name or part of a name, or the designation as an unknown person; and that all subsequent proceedings be taken under the true name.

From Co. Proc. $$ 135. 175.

Am'd by ch. 542 of 1879.

§ 452. When court to decide controversy, or to order other parties to be brought in.

The court may determine the controversy, as between the parties before it, where it can do so without prejudice to the rights of others, or by saving their rights; but where a complete determination of the controversy cannot be had without the presence of other parties, the court must direct them to be brought in. And where a person, not a party to the action, has an interest in the subject thereof, or in real property, the title to which may in any manner be affected by the judgment, or in real property for injury to which the complaint demands relief, and makes application to the court to be made a party; it must direct him to be brought in by the proper amendment.

From Co. Proc., § 122.

See § 820.

Am'd by ch. 512 of 1901.

§ 453. Supplemental summons.

Where the court directs a new defendant to be brought in and the order is not made upon his own application, a supplemental summons must be issued, directed to him, and in the same form as an original summons; except that, in the body thereof, it must require the defendant to answer the original or the amended complaint, and the supplemental complaint, or either of them, as the case requires. And each provision of this chapter, relating to personal service, or a substitute for personal service of an original summons, applies to such a supplemental

summons.

Am'd by ch. 416 of 1877.

ARTICLE SECOND.

Parties severally Liable.

SEC. 454. When persons liable for the same demand may be sued together. 455. Defendant so sued may apply for any relief.

456. Proceedings in action against defendants severally liable.

457. Application of this article to defendants jointly liable.

§ 454. When persons liable for the same demand may be sued together.

Two or more persons, severally liable upon the same written instrument, including the parties to a bill of exchange or a promissory note, whether the action is brought upon the instrument, or by a party thereto to recover against other parties liable over to him; may, all or any of them, be included as defendants in the same action, at the option of the plaintiff.

From Co. Proc. § 120.

Am'd by ch. 416 of 1877.

See §§ 1204, 3347, sub. 3.

§ 455. Defendant so sued may apply for any relief.

The joinder of a person, as defendant in an action, with another person, as prescribed in the last section, does not affect his right to any order or other relief, to which he would have been entitled, if he had been separately sued in the action.

From ch. 282 of 1841, § 1. (4 Edm. 457.)

See § 3347, sub. 3.

§ 456. Proceedings in action against defendants severally liable.

Where a summons issued against two or more defendants, alleged to be severally liable, is served upon some, but not upon all of them, the plaintiff may proceed against those upon whom it is served, as if they were the only defendants named therein. Where it is served upon all of them, the plaintiff may take judgment against one or more of them, where he would be entitled to judgment. if the action was against him or them alone. Where judgment is so taken, the clerk must, upon the plaintiff's application, enter an order, directing that the action be severed, and that the plaintiff may proceed against the other defendants. In any subsequent proceeding, the plaintiff may use, together with a certified copy of such an order, a copy of a paper constituting a part of the judgment-roll, with like effect as if it was the original.

From Co. Proc. § 136.

See 3347, sub. 3.

§ 457. Application of this article to defendants jointly liable.

The last three sections do not affect a defence or other objection of a defendant, growing out of the failure to join in the action two or more persons jointly liable; and, as regards the other parties to the action, persons jointly liable are regarded as one party, for every purpose contemplated by those sections.