An action brought in the City Court of Albany
must be commenced by the service of a summons or the voluntary appearance
of and joinder of issues by the parties.
The summons must be addressed to the defendant
by name, or such part of his name as is known and if his name or any
part thereof be unknown, by a fictitious designation of such name
or part thereof as is unknown, adding a description identifying the
person intended, and must summon him to appear before the Court, at
the courtroom thereof, and at the time specified therein, to answer
the complaint of the plaintiff and must state that the plaintiff will
take judgment by default for the relief demanded in the complaint
together with the costs of the action, if the defendant fails to appear
and answer. It must be issued and subscribed by the Clerk of the Court,
except that it may be issued by the plaintiff's attorney if he be
an attorney of the Supreme Court, who must, in such case, in addition
to subscribing the name of the Clerk, subscribe his own name as the
plaintiff's attorney together with his office and post office address.
The summons must be substantially in the following
form, the blanks being properly filled out:
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CITY COURT OF ALBANY
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.............................................................
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plaintiff,
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against
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Summons.
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.............................................................
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defendant.
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To the above-named defendant:
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You are hereby summoned and required
to appear in this action in the City Court of Albany, in the courtroom
thereof, in the City Hall in the City of Albany, on the ..... day
of 19.., at nine o'clock in the forenoon, to answer the complaint
of the plaintiff in this action, who, if you then fail to appear and
answer, will take judgment against you by default for the relief demanded
in the complaint together with the costs of this action.
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Witness, ......................... and ...................
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Justices of said City Court.
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Dated at Albany, New York, this ......... day
of ........, in the year of our Lord one thousand nine hundred and
..................... by the Court.
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........................Clerk.
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The summons must be served as follows:
A.
If an action be against a corporation, joint-stock
company or association, by delivery of a copy of the summons to the
president, vice-president, or other head of the corporation, joint-stock
company or association, or to the secretary, assistant secretary,
cashier, treasurer, assistant treasurer, manager or managing agent
thereof, but when no such officer resides or can be found in the City
of Albany, or in any town adjoining thereto within the County of Albany,
to a director resident therein, or who may be found therein.
B.
Where the defendant to be served is a railroad corporation, steamboat or other transportation corporation and no officer thereof resides or can be found in the City of Albany or in any town adjoining thereto within the County of Albany, to whom a copy of the summons may be delivered, as prescribed in Subsection A of this 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, within the City of Albany, or in any town adjoining thereto within the County of Albany; unless at least thirty (30) days before it was issued, the corporation had filed, in the office of the Clerk of the County of Albany, a written instrument, designating a person residing in the City of Albany or in any town adjoining thereto within the County of Albany, upon whom process to be issued by a Justice of the Peace or the City Court of Albany against it may be served, in which case the summons may be personally served by delivering a copy to the person so designated.
C.
Where the defendant to be served is a corporation,
joint-stock company or association, partnership or person, doing business
in the state as an express company, an insurance company, or a telegraph
company, and no person resides or can be found in the City of Albany
or in any town adjoining thereto within the County of Albany, to whom
a copy of the summons may be delivered as provided in any of the subsections
of this section, it may be personally served on the express company
by delivering a copy thereof to any local or general agent to receive
freight or parcels, route agent, or messenger of the defendant within
the City of Albany or in any town adjoining thereto within the County
of Albany, and on any insurance company by delivering a copy thereof
to any local or general agent of the defendant within the City of
Albany or in any town adjoining thereto within the County of Albany,
and on any telegraph company by delivering a copy thereof to any office
manager of the defendant, within the City of Albany or in any town
adjoining thereto within the County of Albany; unless at least thirty
(30) days before it was issued, the defendant had filed in the office
of the Clerk of the County of Albany, a written instrument, designating
a person residing in the City of Albany or in any town adjoining thereto
within the County of Albany, upon whom process to be issued by a Justice
of the Peace or the City Court of Albany, 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.
D.
Where a person has been designated as prescribed in
either of the last two (2) subsections, and the designation has been
revoked, or it appears by affidavit, or the return of the Marshal
to whom a summons has been duly delivered for service, that the person
designated is dead, or has ceased to reside in the City of Albany
or any town adjoining thereto within the County of Albany, or that
he cannot, after due diligence be found within the City of Albany
or in any town adjoining thereto within the County of Albany, so as
to deliver a copy of the summons to him, the summons 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.
E.
Where the summons is issued against a foreign insurance
corporation, service may be made by a delivery of a copy of the summons
to the Superintendent of Insurance of the State of New York; and the
certificate of such Superintendent admitting due service thereof filed
with this Court shall be deemed sufficient proof of service.
F.
Where the person to be served is a minor under the
age of fourteen (14) years, by delivery of a copy to such minor, and
also to his father, mother or guardian, or if they be not within the
City of Albany or in any town adjoining thereto within the County
of Albany, then to any person having the care or control of said minor,
or with whom he resides, or in whose service he is.
G.
Where the summons is issued against a person judicially
declared to be of unsound mind, or incapable of conducting his own
affairs in consequence of habitual drunkenness, or for any other cause,
and for whom a committee has been appointed by delivery of a copy
to such committee and to the defendant personally.
An order for the service of a summons upon a
defendant residing within the City of Albany or within any town adjoining
thereto within the County of Albany may be made by the Court upon
satisfactory proof by the affidavit of a person not a party to the
action, and the return of a Marshal, that proper and diligent effort
has been made to serve the summons upon the defendant, and that the
place of his sojourn cannot be found, or if he is within the City
of Albany or within any town adjoining thereto within the County of
Albany, that he avoids service so that personal service could not
be made.
The order must direct that the service of the
summons be made, by leaving a copy thereof, and of the order, at the
residence of the defendant, with a person of proper age, if upon reasonable
application, admittance can be obtained, and such person found who
will receive it; or, if admittance can not be obtained, nor such a
person found, by affixing the same to the outer or other door of the
defendant's residence, and by depositing another copy thereof, properly
enclosed in a post-paid wrapper, addressed to him, at his place of
residence, in a post office in the City of Albany; or upon proof being
made by affidavit that no such residence can be found, service of
the summons may be made in such manner as the Court may direct.
The order, and the papers upon which it was
granted, must be filed, and the service must be made, not less than
six (6) days before the return day of the summons; otherwise the order
becomes inoperative. On filing an affidavit showing service according
to the order, the summons is deemed served and the same proceedings
may be taken thereupon, as if personal service thereof had been made
except that no execution against the person shall issue upon a judgment
obtained after such service. The summons, when returned to the Clerk's
office, shall be indorsed with the residence or post office address
of the plaintiff, and also the name and post office address of the
attorney, if any.
Where the summons is served, pursuant to an
order made as herein prescribed, and the defendant so served does
not appear, he or his representative must upon good cause shown and
upon just terms be allowed to defend the action at any time within
six (6) months after personal service of written notice thereof; or
if such notice has not been served, within two (2) years after the
entry of the judgment. If the defense 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 by virtue of an
execution issued upon the judgment shall not be affected thereby.
The summons, and in a proper case a copy of
the complaint, or a precept in summary proceedings, may be served
by a Marshal or by any person not a party to the action, who is over
the age of eighteen (18) years. Proof of service by such person other
than a Marshal must be made by his affidavit, which must state that
he is over the age of eighteen (18) years, the particular place, time,
and manner of service, and that the affiant knew the person so served
to be the person mentioned and described in the summons as defendant
therein. A summons shall not be deemed to have been properly served
unless the Marshal or other person serving the same shall cause proof
thereof to be filed with the Clerk of the Court not less than three
(3) days before the return day of the summons.
Except as prescribed in § 46 of the
Lien Law, the return day mentioned in the summons must not be more
than twelve (12) days from its date and, except in the case provided
for in § 46 of the Lien Law or in the case where an order
of arrest had been issued, must be served at least six (6) days before
the time of appearance.
In an action to recover a penalty or forfeiture
given by a statute or ordinance if a copy of the complaint is not
delivered to the defendant with a copy of the summons, a general reference
to the statute or ordinance must be indorsed upon the copy of the
summons so delivered in the following form: "According to the provisions
of," et cetera; adding such a description of the statute or ordinance
as will identify it with convenient certainty, and also specifying
the section if penalties or forfeitures are given, in different sections
thereof, for different acts or omissions, and the proof of service
of such summons must show that the copy served on the defendant likewise
had such indorsement thereon.
In an action where an execution may issue against
the person upon a judgment rendered in favor of the plaintiff, unless
a verified complaint is served with the summons, a general reference
to that fact must be indorsed by the Clerk upon the summons and upon
the copy to be served on the defendant in the following form: "Plaintiff
claims defendant is liable to arrest and imprisonment in this case."
In the event of there being no such indorsement, no execution against
the person shall issue, and the proof of service of such summons must
show that the copy served on the defendant likewise had such indorsement
upon it.
A party to an action or special proceeding in
the City Court of Albany, who is of full age, may appear and prosecute
or defend the same, in person or by an attorney, at his election,
unless he has been judicially declared to be incompetent to manage
his affairs; except that a party may appear for the purpose of pleading
in or adjourning a cause or proceeding by his agent duly authorized
for such purpose. The statement under oath before the Court of such
agent as to his authority shall be prima facie evidence thereof.
When a guardian is necessary he must be appointed
by the Court as follows:
A.
If the infant be plaintiff or petitioner, the appointment
must be made before the summons or precept is issued, upon the application
of the infant, if he be of the age of fourteen (14) years or upwards;
if under that age, upon the application of some relative or friend.
The consent in writing of the guardian to be appointed and to be responsible
for costs, if he fail in the action or proceeding, must be filed with
the Clerk of the Court.
B.
After the service and return of a summons or precept
against an infant defendant or respondent no other proceedings shall
be taken in the action or proceeding, until a person has been appointed
to appear as his guardian for the purpose of the action or proceeding.
Upon the nomination of the defendant, the Court must appoint a proper
person for that purpose. If the defendant or respondent does not appear
upon the return of the summons or precept, or if he neglects or refuses
to nominate, the Court may, on the application of the plaintiff or
petitioner, appoint any proper person as his guardian. The written
consent of the person so appointed must be filed with the Clerk of
the Court before his appointment. The guardian so appointed is not
responsible for any costs.
