Service by elisors- How made.

wise provided by law, shall be executed by the coroner of the county. 2 R. S. 460, 461, Edm. Ed. ; 3 R. S. (5th ed.) 741.

It is also provided by the Code that, in actions in which the sheriff is a party, all the provisions of the Code relating to sheriffs shall apply to coroners. Code, § 419.

Section 5. Service by elisors. When both the sheriff and coroner are parties to the action or otherwise disqualified from serving a summons, the court may appoint two elisors to make the service. Mayor, etc., of Berwick v. Williams, 10 Moore, 266; and see Jackson v. Rathbone, 3 Cow. 296; People v. Palmer, 1 id. 32; Anonymous, 23 Wend. 102; Mayor of Norwich v. Gill, 8 Bing. 27.

ARTICLE II.

SERVICE, HOW MADE.

Section 1. Time of service and limiting time. Unless it is otherwise provided by the attorney subscribing the summons, there is no specified time within which a summons must be served. The Code simply requires that the summons shall be served and returned with all reasonable diligence. But, if the attorney subscribing the summons elects to fix a time for its service, he can, by an indorsement on the summons, require the sheriff to make the service at that time. Code, § 133. In case the sheriff should disregard this requirement, he may be required to make due service within ten days thereafter, under the provisions of rule 10 of the supreme court.

It is a general rule that a summons may be served on any day or at any hour of the day or night. Priddee v. Cooper, 1 Bing. 66; Upton v. Mackenzie, 1 Dowl. & R. 172; Moss v. Powell, 2 Burr. 813, note. To this rule there are several statutory exceptions. Thus, the service of a summons on Sunday is utterly void, and subjects the party making the service to damages at the suit of the party aggrieved. 1 R. S. 628, Edm. Ed., § 69; Field v. Park, 20 Johns. 140; Van Vechten v. Paddock, 12 Johns. 178; Hastings v. Farmer, 4 N. Y. (4 Comst.) 293. So the service of a summons upon an elector on an election day, in any city or town where he is entitled to vote, is prohibited by statute. 1 R. S. 116 Edm. Ed., § 4; Hastings v. Farmer, 4 N. Y. (4 Comst.) 293; Weeks v. Noxon, 11 How. 189; S. C., 1 Abb. 280.

So formerly

Place of service-Mode of personal service, and upon whom made.

no summons could be legally served on Saturday, on a person who keeps that day as the Sabbath (Laws of 1839, ch. 367); this law has however been repealed, and the prohibition confined to process issuing out of a justice's court. Marks v. Wilson, 11 Abb. 87; Laws of 1847, ch. 349.

Service of a summons on any day prohibited by statute is void, and has no effect as the commencement of an action. Hastings v. Farmer, 4 N. Y. (4 Comst.) 293. But in the absence of any statutory restrictions, the service of a summons upon any day will be valid.

Section 2. Place of service. With the exception of the cases specified in section 135 of the Code, the service of a summons must be made within the territorial jurisdiction of the court from which it issues. Litchfield v. Burwell, 5 How. 341; Fiske v. Anderson, 33 Barb. 71; S. C., 12 Abb. 8.

By the provisions of section 133 of the Code, the summons may be served by the sheriff of the county where the defendant may be found, or by any other person not a party to the action.

The rule requiring such service to be made within the territorial limits of the general jurisdiction of the court is not without exceptions. Where the cause of action is one of those specified in sections 123, 124 of the Code, the superior court, and the court of common pleas of the city of New York have jurisdiction. Code, § 33, subd. 1. In actions of that character, the summons may be served upon the defendants in any county of this State. Porter v. Lord, 4 Abb. 43; 4 Duer, 682; 13 How. 254. So when all of the defendants reside in that city, or when one of several defendants jointly liable on a contract, resides there, these courts have jurisdiction, and the summons may be served anywhere in this State. Ib. Bates v. Reynolds, 7 Bosw. 685. In other cases the defendants must all reside in that city, or they must be personally served with process within the city, or the court will not have jurisdiction. Ib. Code, § 33; Zeregal v. Benoist, 33 How. 129; 7 Rob. 199.

Section 3. Mode of personal service in general, and upon whom made. Personal service of a summons may be made upon persons, or upon foreign or domestic corporations. Code, § 134. When it is sought to bring an action against persons, personal service of a summons may be made by delivering the summons to the defendant, and leaving it with him. Beekman v. Cutler, 2 Code R. 51.

Mode of personal service, and upon whom made.

If the defendant refuses to receive or retain the summons presented to him, the party making the service should, notwithstanding, leave a copy with him, at the same time informing him of its contents, and of his right to retain the copy tendered him. Beekman v. Cutler, 2 Code R. 51; Rule 23, Supreme Court; Bell v. Vincent, 7 Dowl. & Ryl. 233.

The delivery must be made by the person authorized to make the service, and the party receiving the summons must be the defendant in the action. Delivery to the wrong person is never equivalent to a personal service, although the party receiving it may hand it to the person for whom it was intended. Williams

v. Van Valkenburgh, 16 How. 144; Goggs v. Lord Huntingtower, 12 Mees. & Wels. 503; S. C., 1 D. & L. 599.

.

The office of a summons is to give the defendant a certain and fair notice that an action has been commenced, and also to notify him of that reasonable time which the statute has given as an opportunity for the preparation of a defense, and any trick or device which deprives the defendant of these provisions for his protection is a fraud upon the statute, which will not be tolerated by the courts, although the letter of the statute has not been violated. Bulkley v. Bulkley, 6 Abb. 307; Carpenter v. Spooner, 2 Sandf. 717; S. C., 2 Code R. 140; Goupil v. Simonson, 3 Abb. 474. Thus where a summons, sealed up in a tin box, was served upon a defendant leaving the State for California, the summons, and all proceedings under it, were set aside as fraudulent and void. Bulkley v. Bulkley, 6 Abb. 307. So where a defendant has been brought within the jurisdiction of the court by means of fraudulent representations, for the purpose of making personal service of a summons upon him, the court will set aside the service. Carpenter v. Spooner, 2 Sandf. 717; S. C., 2 Code R. 140; Metcalf v. Clark, 41 Barb. 45; and see Goupil v. Simonson, 3 Abb. 474; Benninghoff v. Oswell, 37 How. 235; Wells v. Gurney, 8 Barn. & Cress. 769; and in general, personal service, procured through fraud, is invalid. Ib.

In actions against husband and wife, where no attempt is made to charge the wife's separate estate, service upon the husband is service upon both. Eckerson v. Vollmer, 11 How. 42; Foot v. 183. See S. C., 41 N. Y. (2 Hand) 358;

Lathrop, 53 Barb.

Beaucombe v. Love, Barnes, 406, 412.

The copy of the summons left with the defendant should be an exact counterpart of the original, but a trifling omission of a

Service on corporations.

word or letter, not altering the sound sense or meaning of the process, will not make the service irregular. Sutton v. Burgess, 1 C. M. & R. 770; 3 Dowl. P. C. 489; 5 Tyrw. 320; 1 Gale's Exch. 17, and see Van Wyck v. Hardy, 39 How. 392; affirming S. C., 20 id. 222.

Section 4. Service on corporations. The Code provides that in actions against corporations the summons may be served by delivering a copy to the president, secretary, cashier, treasurer, a director, or managing agent of the corporation; but it further provides, that such service can be made in respect to a foreign corporation only when it has property within this State, or the cause of action arose therein, or where personal service is made within the State upon the president, treasurer or secretary. Code, § 134.

The managing agent upon whom the summons may be served must be one whose agency extends to all the transactions of the corporation; one who has, or is engaged in the management of the corporation, in distinction from the management of a particular branch or department of the business. Brewster v. The Michigan Central Railroad Company, 5 How. 183; S. C., 3 Code R. 215. This does not authorize the service of a summons on a railroad corporation in the person of its baggage-master, or its general ticket and passenger agent. Flynn v. Hudson River Railroad Company, 6 How. 308; S. C., 10 N. Y. Leg. Obs. 158; Doty v. Michigan Central Railroad Company, 8 Abb. 427.

It is provided by statute that any life or health insurance company doing business in this State shall appoint an attorney within the State on whom process of law can be served, and that such attorney shall file with the superintendent of the insurance department his certificate of appointment, and the service of process upon him shall be deemed a valid personal service upon such corporation. Laws of 1853, ch. 463, § 14; id. ch. 551, 2, as amended by Laws of 1862, ch. 300, § 4. By the laws of 1855 similar provisions were made in regard to insurance and other corporations created by the laws of other States, and doing business within this State. This act requires that a person shall be designated in every county in which such corporation transacts business on whom process may be served, and declares that such service shall be valid when duly made. It further provides, that if such person shall not be designated, it shall be lawful to serve such process on any person who can

Service on corporations.

be found within the State acting as agent of said corporation or doing business for them. A summons is included in the general term "process." Laws of 1855, ch. 279, §§ 1, 2, 3, 4.

This act does not confer upon the court any jurisdiction which it did not formerly possess, but merely increases the facilities for the service of a summons against a foreign corporation in the cases allowed by section 134 of the Code, and of which the court has jurisdiction under section 427 of the same act. Cumberland Coal Company v. Sherman, 8 Abb. 243; S. C., 30 Barb. 159; 20 How. 62.

Where two parties make adverse claim to be the officers of the same corporation, the service should be made on the officers in possession and acting in an official capacity. Berrian v. Methodist Society in New York, 4 Abb. 424; S. C., 6 Duer, 682.

It will be noticed that, independently of the provisions of the act of 1855, the right to serve a summons upon any officer other than the president, treasurer or secretary of a foreign corporation depends upon the fact (1) that such corporation owns property within this State, or (2) that the cause of action arose therein. Code, § 134. It may be laid down as a general rule that a cause of action on contract arises within a State when such State is designated in the contract as the place where such contract is to be executed, as it is the place of the performance and not of the making of a contract that determines where the cause of action arises. Burckle v. Eckhart, 3 N. Y. (3 Comst.) 132; Cumberland Coal Company v. Sherman, 8 Abb. 243; S. C., 30 Barb. 159; 20 How. 62; Campbell v. Champlain Railroad, 18 id. 412; Bank of Commerce v. Washington and Rutland Railroad Company, 10 id. 1; Connecticut Mutual Insurance Company v. Cleveland Railroad Company, 23 id. 180; S.C., 26 id. 226; 41 Barb. 9. But in order to bring the right of service within the other requirements of the Code, the property owned within the State must be such as would be liable to attachment under sections 227, 242 of the Code. The right of property in the corporation must be present and absolute, and not contingent upon the happening of some future event. Bates v. New Orleans, Jackson and Great Northern Railroad Company, 4 Abb. 72; S. C., 13 How. 516. See Jones v. Bradner, 10 Barb. 193; Buckmaster v. Smith, 22 Vt. 203.

The person upon whom a summons may be served in an action against municipal corporations, is usually regulated by the act of