
    THE PEOPLE ex rel. ELLINGHAUSEN v. LEASK.
    
      N. Y. Supreme Court, First Department; Chambers,
    
    
      December, 1876.
    Alias Summons.—Peremptory Mandamus.
    Upon the return by a marshal of a summons issued from a district court, “ defendant not found, ” after the lapse of time within which it can be served, plaintiff, on demand, is entitled to an alias summons, without waiting till the return day mentioned in the summons.
    The plaintiff can enforce his demand by a peremptory mandamus to the clerk of the court.
    Motion for peremptory mandamus.
    A summons was issued from the eighth district court on November18,1876, returnable on the 28th of the same month. On the 23rd of the month, on the return of the marshal that defendant was not found, a demand was made for an alias summons, which the defendant, the clerk of the court, refused. An alternative writ of mandamus was thereupon issued, and defendant made return: “ That relators demanded summons before the return day.” To which return relator demurred, and asked for a peremptory writ. ■
    After the granting of the alternative writ, and before the decision of the demurrer, defendant Leask ceased to hold office by the decision of the court of appeals in Healy v. Leask.
    
      S. B. Brague, for the motion,
    claimed that it raised the point as to the time when the clerk must issue the alias,— that it must be issued when requested on the return (1 L. 1857, p. 714, c. 344, § 22),—that as the summons must be served within six days before the time for appearance, when it gets within six days of that time, the summons is dead for all purposes, and, if plaintiff could not immediately get an alias, in a case of difficult service, he might never succeed, for he could have only every alternate six days in which to serve the defendant.
    
      Henry G. Leash, defendant in person, opposed.
   Davis, P. J.

If the marshal returned the summons, “ defendant not found,” at any time after the lapse of the time within which it could be lawfully served, the plaintiff on demand was entitled to an alias summons, without waiting till the return day named in the summons. The demurrer is therefore well taken, and the relator is entitled to peremptory mandamus. It is, however, too late to be of any practical value to him so far as relates to the issuing of the mandamus. Relator is entitled to costs.  