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1. When the action concerns her separate property, she may sue alone;

2. When the action is between herself and her husband, she may sue or be sued alone, and in no case need she prosecute or defend by a guardian or next friend.

Amended by Laws of 1851, ch. 479; 1857, ch. 723.

23 N. Y., 529; 16 N. Y., 73; 31 B., 128, 322; 18 B., 150; 12 B., 19; 18
How. P. R., 149; 11 How. P. R., 184; 8 How. P. R., 203, 389; 6
How. P. R., 53; 4 How. P. R., 346; 9 Ab., 402; 3 Ab., 136.

CHAP. XI.

appear by

$115. When an infant is a party, he must appear by guar- Infant to dian, who may be appointed by the court in which the action guardian. is prosecuted, or by a judge thereof, or a county judge.

32 B., 49; 13 How. P. R., 413; 3 How. P. R., 331; 11 Ab., 455; 10 Ab.,
317; 9 Ab., 34; 5 Ab., 482.

Guardian how ap

§ 116. The guardian shall be appointed as follows: 1. When the infant is plaintiff, upon the application of the pointed. infant, if he be of the age of fourteen years, or if under that age, upon the application of his general or testamentary guardian, if he has any, or of a relative or friend of the infant. If made by a relative or friend of the infant, notice thereof must first be given to such guardian, if he has one; if he has none, then to the person with whom such infant resides; 2. When the infant is defendant, upon the application of the infant, if he be of the age of fourteen years, and apply within twenty days after the service of the summons. If he be under the age of fourteen, or neglect so to apply, then upon the application of any other party to the action, or of a relative or friend of the infant, after notice of such application being first given to the general or testamentary guardian of such infant, if he has one within this state; if he has none, then to the infant himself, if over fourteen years of age and within the state; or if under that age and within the state, to the person with whom such infant resides. And in actions Partition of for the partition of real property, or for the foreclosure of a ty, foreclo mortgage or other instrument, when an infant defendant mortgages, resides out of this state, the plaintiff may apply to the court in which the action is pending, at any special term thereof, and will be entitled to an order, designating some suitable person to be the guardian for the infant defendant, for the purposes of the action, unless the infant defendant, or some one in his behalf, within a number of days after the service of a copy of the order, which number of days shall be in the said order specified, shall procure to be appointed a guardian for the said infant. And the court shall give special directions in the order, for the manner of the service thereof, which may be upon the infant himself, or by service upon any relation or person with whom the infant resides, and either by mail or personally upon the person so served.

Amended by Laws of 1851, ch. 479; 1852, ch. 392; 1862, ch. 460; 1863,
ch. 392.

32 B., 49; 31 B., 309; 28 B., 302; 11 Ab., 456; 10 Ab., 310, 317, 41;
8 Ab., 46; 5 Ab., 482; 2 Ab., 11.

real proper.

sure of

&c.

PART III

Who may

plaintiffs.

$117. All persons having an interest in the subject of the

be joined as action, and in obtaining the relief demanded, may be joined as plaintiffs, except as otherwise provided in this title.

Who may

defendants.

29 B., 388; 22 B., 365, 601; 16 B., 258, 292, 325; 8 B., 656; 8 How. P. R., 457, 518; 2 Ab., 14, 15; 1 Ab., 138.

$118. Any person may be made a defendant, who has or be joined as claims an interest in the controversy, adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the questions involved therein.

Parties

united in interest

when to be

joined.

When one

or more may sue or defend for

the whole.

Plaintiff

different

23 N. Y., 269; 12 N. Y., 583; 29 B., 388; 24 B., 250; 22 B., 366, 601; 20 B., 384; 18 B., 594; 12 B., 353; B., 296; 8 B., 656; 22 How. P. R., 354; 21 How. P. R., 33; 20 How. P. R., 377; 10 How. P. R., 508; 8 How. P. R., 389, 518; 6 How. P. R., 460; 13 Ab., 458; 7 Ab., 261; 2 Ab., 15; 1 Ab., 45, 138.

$119. Of the parties to the action, those who are united in interest must be joined as plaintiffs or defendants; but if the consent of any one who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the reason thereof being stated in the complaint; and when the question is one of a common or general interest of many persons, or when the 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 the whole.

23 N. Y., 327; 32 B., 588; 29 B., 132; 24 B., 250; 22 B., 601; 19 B., 527; 12 B., 19; 11 B., 518; 8 B., 656, 666; 21 How. P. R., 319; 17 How. P. R., 78; 8 How. P. R., 518; 13 Ab., 123, 146; 10 Ab., 233; 2 Ab., 453.

$120. Persons severally liable upon the same obligation or

may sue in instrument, including the parties to bills of exchange and promissory notes may, all or any of them, be included in the same action, at the option of the plaintiff.

parties to commercial paper.

Actions not to abate by

23 N. Y., 287; 10 N. Y., 317; 23 B., 443; 16 B., 184, 291; 8 B., 656; 20 How. P. R., 72; 11 How. P. R., 570; 10 Ab., 117; 3 Ab., 308; 4 E. D. S., 379.

S 121. No action shall abate by the death, marriage or other death, & disability of a party, or by the transfer of any interest therein, if the cause of action survive or continue. In case of death, marriage, or other disability of a party, the court, on motion, at any time within one year thereafter, or afterwards on a supplemental complaint, may allow the action to be continued by or against his representative or successor in interest. In case of any other transfer of interest, the action shall be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted in the action. After a verdict shall be rendered in any action for a wrong, such action shall not abate by the death of any party, but the case shall proceed thereafter in the same manner as in cases where the cause of action now survives by law. At any time after the death, marriage, or other disability of the party plaintiff, the court in which an action is pending, upon notice to such persons as it may direct, and upon application of any person aggrieved, may, in its discre

Proceed

ings in case

of death,
or other dis

marriage,
ability of
parties.

tion, order that the action be deemed abated, unless the same be continued by the proper parties, within a time to be fixed by the court, not less than six months, nor exceeding one year, from the granting of the order.

As amended by Laws of 1862, ch. 460.

26 B., 575; 23 How. P. R., 300; 21 How. P. R., 352; 20 How. P. R.,
377; 18 How. P. R., 459; 16 How. P. R., 285, 378; 15 How. P. R.,
242; 13 How. P. R., 175, 405; 11 How. P. R., 380; 10 How. P. R.,
253; 9 How. P. R., 190; 8 How. P. R., 175; 7 How. P. R., 31, 159,
268, 269, 296; 6 How. P. R., 14, 220; 4 How. P. R., 6, 329, 358;
3 How. P. R., 350; 13 Ab., 7; 10 Ab., 382; 9 Ab., 323; 5 Ab., 353;
2 Ab., 209, 229; 1 Ab., 55, 127, 137, 416.

CHAP. XI.

to decide

versy, or to

be brought

$122. The court may determine any controversy between Court when the parties before it, when it can be done without prejudice controto the rights of others, or by saving their rights, but when a order other complete determination of the controversy cannot be had parties to without the presence of other parties, the court must cause in. them to be brought in. And when, in an action for the reco-` very of real or personal property, a person, not a party to the action, but having an interest in the subject thereof, makes application to the court, to be made a party, it may order him to be brought in by the proper amendment.

A defendant against whom an action is pending upon a contract, or for specific, real or personal property, may at any time before answer, upon affidavit, that a person, not a party to the action, and without collusion with him, makes against him a demand for the same debt, or property, upon due notice to such person, and the adverse party, apply to the court for an order to substitute such person in his place, and discharge him from liability to either party on his depositing in court the amount of the debt, or delivering the property, or its value, to such person as the court may direct; and the court may, in its discretion, make the order.

As amended by Laws of 1851, ch. 479.

18 N. Y., 485; 31 B., 657; 29 B., 26, 388; 24 B., 162; 23 B., 262; 22 B.,
601; 18 B., 594; 17 B., 426; 16 B., 292; 12 B., 58; 8 B., 656; 6 B.,
145, 564; 11 Ab., 3; 9 Ab., 34; 3 Ab., 246; 2 Ab., 14; 1 Ab., 45,
141, 256; 20 How. P. R., 461; 15 How. P. R., 258; 14 How. P. R.,
505; 12 How. P. R., 47; 11 How. P. R., 154; 9 How. P. R., 508;
8 How. P. R., 426, 457; 7 How. P. R., 79; 6 How. P. R., 460; 5
How. P. R., 99; 3 How. P. R., 281, 410.

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OF THE PLACE OF TRIAL OF CIVIL ACTIONS.

SEC. 123. Certain actions to be tried where the subject or some part thereof is situated.

124. Other actions, where the cause, or some part thereof, arose.

125. Other actions, according to the residence of the parties.

126. Action may be tried in any county unless defendant demand trial in proper county.

$123. Actions for the following causes, must be tried in the county in which the subject of the action or some part thereof is situated, subject to the power of the court to change the place of trial, in the cases provided by statute. 1. For the recovery of real property or of an estate or inte

Certain actried where some part

tions to be

subject or

thereof is situate

PART III

Other ac

cause or

rest therein, or for the determination, in any form, of such right or interest, and for injuries to real property :

2. For the partition of real property :

3. For the foreclosure of a mortgage of real property:

4. For the recovery of personal property, distrained for any

cause.

9 N. Y., 267; 26 B., 198; 23 B., 411; 17 How. P. R., 522; 16 How. P. R., 41 12 How. P. R., 35; 9 How. P. R., 512; 6 How. P. R., 274; 5 How. P. R., 141; 6 Ab., 166; 4 Ab., 44; 3 Áb., 22; 2 Ab., 13.

S124. Actions for the following causes, must be tried in tions, where the county where the cause or some part thereof arose, subject to the like power of the court, to change the places of trial in the cases provided by statute:

some part

thereof arose.

Other actions, ac

cording to

1. For the recovery of a penalty or forfeiture imposed by statute; except that when it is imposed for an offense committed on a lake, river, or other stream of water situated in two or more counties, the action may be brought in any county bordering on such lake, river or stream, and opposite to the place where the offense was committed:

2. Against a public officer or person specially appointed to execute his duties, for an act done by him in virtue of his office, or against a person who by his command or in his aid, shall do anything touching the duties of such officer.

9 N. Y., 267; 12 B., 58; 17 How. P. R., 522; 11 How. P. R., 240; 7 How. P. R., 249; 5 How. P. R., 141; 4 Ab., 44.

S125. In all other cases, the action shall be tried in the county in which the parties or any of them shall reside at the residence of commencement of the action; or if none of the parties shall the parties. reside in the state, the same may be tried in any county which the plaintiff shall designate in his complaint; subject, however, to the power of the court to change the place of trial, in the cases provided by statute.

Action may

be tried in unless de

any county, fendant demard

17 How. P. R., 522, 545; 7 How. P. R., 462; 5 How. P. R., 141, 243; 4 How. P. R., 88, 185; 8 Ab., 148; 6 Ab., 329; 4 Ab., 55, 246, 373.

S 126. If the county designated for that purpose in the complaint, be not the proper county, the action-may, notwithstanding, be tried therein, unless the defendant, before the time for answering expire, demand, in writing, that the trial trial in pro- be had in the proper county, and the place of trial be thereupon changed by consent of parties, or by order of the court, as is provided in this section.

per county.

The court may change the place of trial in the following

cases:

1. When the county designated for that purpose in the complaint is not the proper county:

2. When there is reason to believe that an impartial trial cannot be had therein:

3. When the convenience of witnesses and the ends of justice would be promoted by the change.

When the place of trial is changed, all other proceedings shall be had in the county to which the place of trial is

changed, unless otherwise provided by the consent of the CHAP. XL. parties, in writing, duly filed, or order of the court, and the

papers shall be filed or transferred accordingly.

As amended by Laws of 1851, ch. 479.

26 B., 198; 17 B., 229; 6 B., 146; 20 How. P. R., 248; 17 How. P. R.,
522; 12 How. P. R., 81; 10 How. P. R., 403; 6 How. P. R.,
106, 481; 4 How. P. R., 88; 342; 8 Ab., 273.

TITLE V.

OF THE MANNER OF COMMENCING CIVIL ACTIONS.

SEC. 127. Actions how commenced.

128. Summons, requisites of.

129. Notice to be inserted in certain actions.

130. Complaint need not be served with summons. In such case what to be stated in summons and proceedings thereon.

131. Defendant unreasonably defending, when to pay costs.

132. Notice of pendency of action affecting title to real property.

133. Summons, by whom served.

134. Summons, how served and returned.

135. Publication when defendant cannot be found.

136. Proceedings when there are several defendants, and part only served.

137. When service deemed made in case of publication.

138. Service of summons, how proved.

139. When jurisdiction of action acquired.

$127. Civil actions in the courts of record of this state, Actions, shall be commenced by the service of a summons.

11 N. Y., 55; 18 B., 334; 10 B., 259; 8 B., 543; 14 How. P. R., 361;
13 How. P. R., 44; 6 How. P. R., 47; 11 Ab., 452; 10 Ab., 474; 8
Ab., 184, 309; 6 Ab., 340; 4 Ab., 44, 76.

how commenced.

requisites

$128. The summons shall be subscribed by the plaintiff, or Summons his attorney, and directed to the defendant, and shall require of 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.

10 N. Y., 317; 18 B., 334; 14 B., 541; 7 B., 84; 16 How. P. R., 371; 5
How. P. R., 241; 3 How. P. R., 289; 9 Ab., 65; 8 Ab., 173; 2
Ab., 15.

$ 129. 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.

11 N. Y., 352; 32 B., 63; 29 B., 385; 18 B., 334; 11 B., 305; 7 B., 84;
23 How. P. R., 469; 21 How. P. R., 9; 20 How. P. R., 335; 19
How. P. R., 164; 17 How. P. R., 137, 478; 15 How. P. R., 8, 92,
363 14 How. P. R., 395, 457, 463, 474; 13 How. P. R., 129, 130;
12 How. P. R., 210; 9 How. P. R., 445; 8 How. P. R., 346, 504; 7
How. P. R., 12, 52; 6 How. P. R., 237; 4 How. P. R., 94; 11 Ab.,
2, 378; 10 Ab., 328; 8 Ab., 378; 6 Ab., 15, 329; 5 Ab., 68, 384; 2
Ab., 15, 435; 1 Ab., 279.

Notice to

be inserted in certain

actions.

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