TITLE II. Commencement of action; appearance of parties ; provisional remedies. ARTICLE 1. Commencement of action, 2. Appearance of parties. 4. Attachment of property. ARTICLE FIRST. COMMENCEMENT OF ACTION, SEC. 2876. Action; how commenced. 2877. Contents of summons. 2878. Service of summons. 2879. Id.; upon a corporation. 2880. Id.; special provision relating to railroad corporations. 2882. Last two sections qualified. 2883. Second and third summons; effect thereof. § 2876. Action; how commenced. An action is commenced before a justice of the peace, either by the voluntary appearance and joinder of issue by the parties, or by the service of a summons. 2 R. S. 227, 11, 12 and 13 (2 Edm. 243). Andrews v. Thorp. 1 E. D. Smith, 615; Clapp v. Graves, 26 N. Y. 418; Sagendorph v. Shutt, 41 Barb. 102; Davis v. Jones, 4 How. 340; Lester v. Crary, 1 Denio, 81. § 2877. Contents of summons.-The summons must be directed, generally, to any constable of the county where the justice resides; and it must command him to summon the defendant to appear before the justice, at a place specified therein, to answer the complaint of the plaintiff in a civil action. Where the summons is accompanied with an order to arrest the defendant, it must be made returnable immediately upon the arrest of the defendant, within twelve days after the day when it was issued; in every other case, it must be returnable at a time therein specified, not less than six nor more than twelve days after the day when it was issued. Id., 14, amended. People ex rel. Schwartz, 3 Abb, N. S. 395; Jager 2. Hannah, 6 Hill, 631; Bryan v. Cain. 1 Den. 507; Bradbury r. Van Nostrand, 45 Barb. 194; Gates v. Ward, 17 id. 424; Agreda v. Faulberg. ? D. Smith, 178; Gilmore v. Jacobs, 48 Barb. 336; Hoffman r. Fish, 18 bb. 76; Schroepel v. Taylor, 10 Wend. 196; Humphrey v. Persons, 23 Sarb. 313; Smith v. Joyce, 12 id. 21; Reno v. Pinder, 20 N. Y. 298. § 2878. Service of summons. - Personal service of the summons must be made by delivering a copy thereof to the defendant; except where it is specially prescribed in this chapter that personal service may be made by delivering a copy to another person. Where service of a summons is personal, it must be made at least six days before the time of appearance specified therein; except where it is accompanied with an order of arrest. Id., 15, amended. Marks o. Wilson, 11 Abb. 87; Columbia Turnpike R. v. Haywood, 10 Wend. 422; Tuttle v. Hunt, 2 Cow. 436; Putnam v. Man, 3 Wend. 202; Cornell v. Moulton, 3 Denio, 12. § 2879. Id.; upon a corporation. Where the defendant to be served is a corporation, the summons may be personally served upon it, by delivering a copy thereof to an officer or person, to whom a copy of the summons in an action, brought against the corporation in the supreme court, might be delivered, as prescribed in sections 431 and 432 of this act; or, to any director or trustee of the corporation, by whatever official title he is called. Code of Proc., 864; L. 1847, ch. 470, 245 (4 Edm. 587). Wheeler v. N. Y. & II. R. R. R. Co., 24 Barb. 414. 2880. Id.; special provisions relating to railroad corporations. Where the defendant to be served is a domestic railroad corporation, and no officer thereof resides in the county, to whom a copy of the summons may be delivered, as prescribed in the last section, it may be personally served, by delivering a copy thereof to a local superintendent of repairs, freight agent, agent to sell tickets, or station keeper of the corporation, residing in the county; unless, at least thirty days before it was issued, the corporation had filed, in the office of the clerk of the county, a written instrument, designating a person residing in the county, upon whom process to be issued by a justice of the peace against it, may be served; in which case, the summons may be personally served by delivering a copy to the person so designated. L. 1854, ch. 282, 14, 15 (3 Edm. 645). N. Y. & E. R. R. Co. v. Purdy, 18 Barb. 574; see Wheeler v. N. Y. & H. R. R. R. Co., 24 id. 414. § 2881. Id.; relating to express companies.Where the defendant to be served is a corporation, associ partnership, or person, doing business in the an express company, and no person resides in th to whom a copy of the summons may be delivered, as prescribed in the foregoing sections of this article, it may be personally served, by delivering a copy thereof to any local or general agent, agent to receive freight or parcels, route agent, or messenger of the defendant, residing in the county; unless, at least thirty days before it was issued, the defendant had filed, in the office of the clerk of the county, a written instrument, designating a person residing in the county, upon whom process to be issued by a justice of the peace against the defendant, may be served; in which case, the summons may be personally served by delivering a copy thereof to the person so designated. L. 1864, ch. 411, 28 1 and 2 (6 Edm. 286). 2882. Last two sections qualified.-Where a person has been designated, as prescribed in either of the last two sections, and the designation has been revoked, or it appears, by affidavit or the return of the constable, to whom a summons has been duly delivered for service, that the person designated is dead, or has ceased to reside within the county; or that he cannot, after due diligence, be found within the county, so as to deliver a copy of the summons to him; the original summons, or the second or third summons, issued as prescribed in the next section, may be served as if the designation had not been made. Such a designation may be revoked by a writing, executed and filed in like manner as required for the purpose of making the designation. New. 2883. Second and third summons; effect thereof.— Where it appears, by the return of the constable, to whom a summons has been duly delivered for service, that it was not served, for any cause, a second summons may be issued by the same justice, in the same action, within twenty days after the first summons was issued; and, upon the like return thereof, a third summons may be issued, within twenty days after the second was issued. The second or the third summons, as the case may be, relates back to the time when the first summons was issued; and with respect to all proceedings before actual service, the service thereof has the same effect, as if the first summons had been seasonably served. For the purpose of issuing a new summons, as prescribed in this section, a previous summons may be returned upon the sixth, or any subsequent day, before the return day thereof. New. § 2884. Where name of defendant is unknown.Where the plaintiff is ignorant of the name, or part of the name of a defendant, that defendant may be designated in the summons, and in any other process or proceeding in the action, by a fictitious name, or by so much of his name as is known, adding a description, identifying the person intended. The person so designated must thereupon be regarded as a defendant in the action, and as sufficiently described therein for all purposes. When his name, or the remainder of his name, becomes known, the justice, before whom the action is pending, must amend the proceedings already taken, by the insertion of the true or full name, in place of the fictitious name, or part of a name; and all subsequent proceedings must be taken under the name so inserted. 2 R. S. 274, 282 (2 Edm. 282). 2885. Return of summons. A constable, who serves a summons, must, at or before the time when the same is returnable, make and deliver to the justice a written return thereof, under his hand, stating the time when, and the manner in which, he served it. A con stable who fails seasonably to serve a summons, delivered to him for service, must make a written return thereof under his hand, stating that it was not served, and the reason why he failed to serve it. 2 R. S. 228, 16 (2 Edm. 244). Manning v. Johnson, 7 Barb. 455; Jackson v. Sherwood, 50 id. 356; Reno v. Pinder, 20 N. Y. 298; Fogg v. Child, 13 Barb. 246; Roberts v. Burrill, 3 T. & C. 30; Van Kirk v. Wilds, 11 Barb. 520; N. Y. & E. R. R. Co. v. Purdy, 18 id. 574; Fitch v. Devlin, 15 id. 47; Hubbard v. Chapin, 28 How. 407; Waring v. McKinley, 62 Barb. 612; Sherwood v. Saratoga & W. R. R. Co., 15 id. 650; Robinson v. McManus, 4 Lans. 380; Perry v. Tynen, 22 Barb. 137; Haughey v. Wilson, 1 Hilt. 259; Hubbard v. Chapin, 28 How. 407; Stewart v. Smith, 17 Wend. 517; Foster v. Hazen, 12 Barb. 547: Hughes v. Mulvey, 1 Sandf, 92; Board of Excise v. Doherty, 16 How. 46; Tuttle v. Hunt, 2 Cow. 436; Legg v. Still man, id. 418; Potter v. Whittaker, 27 How. 10; Sperry v. Reynolds, 65 N. Y. 179 Wheeler v. Lampman, 14 Johns. 480; Wheeler v. N. Y. & H. R. B. R. Co., 24 Barb. 414. ARTICLE SECOND. APPEARANCE OF PARTIES. SEC. 2886. Parties may appear in person or by attorney. 2887. Guardian ad litem for infant plaintiff. 2888. Id.; for infant defendant. 2889. When constable, etc., may not act as attorney. 2890. Authority of attorney; how proved. 2891. Plaintiff to prove his case. 2892. Defendant may offer to compromise; proceedings thereupon. 2893. Justice to wait one hour. § 2886. Parties may appear in person or by attor. ney. A party to an action before a justice of the peace, who is of full age, may appear and prosecute or defend the same, in person or by attorney, at his election unless he has been judicially declared to be incompetent to manage his affairs. 2 R. S. 232, 22 39 and 41 (2 Edm. 248). Wilkinson v. Vorce, 41 Barb. 370; Kittle v. Baker, 9 Johns. 354; Phinney v. Earle, id. 352; Hughes v. Mulvey, 1 Sandf. 92; Sherwood v. Saratoga & Wash. R. R. Co., 15 Barb. 650; Sperry v. Reynolds, 65 N. Y. 179; Merkee v. Rochester, 13 Hun, 157; Heilner v. Barras, 3 C. R. 17, Cushingham v. Phillips, 1 E. D. S. 416; Andrews v. Thorp, id. 615; Bray v. Andreas, id. 387; Hogan v. Baker, 2 id. 22; Sprague v. Irwin, 27 How. 51; Watson v. Morton, id. 294; Day v. Wilber, 2 Cai. 134; Tiffany v. Gilbert, 4 Barb. 320; Pauling v. Hudson Manufact'g Co., 2 E. D. Smith, 38; Wheeler v. Lampman, 14 Johns. 481; Hard v. Shipman, 6 Barb. 621; Clapp v. Graves, 26 N. Y. 418; Willins v. Wheeler, 28 Barb. 669; Osburne v. Gilbert, 52 id. 158. § 2887. Guardian ad litem for infant plaintiff. — Before a summons is issued in behalf of, or an issue is joined without summons by, an infant plaintiff, the justice must appoint a competent and responsible person, nominated by the plaintiff or his general guardian, to appear as his guardian for the purpose of the action. The written consent of the person so appointed must be filed with the justice, before his appointment. The guardian so appointed is responsible for the costs. 2 R. S. 232, 40 (2 Edm. 248). § 2888 Id.; for infant defendant. After the service and return of a summons against an infant defendant, no other proceeding shall be taken in the action until a person has been appointed to appear as his guardian for the purpose of the action. Upon the nomination of the defendant, the justice must appoint a proper person for that purpose. If the defendant does not appear upon the return of the summous, or if he neglects or refuses to nominate, the justice may, on the application |