ments, but unless such persons are joined as defendants the judgment of registration must direct that title be registered subject to such covenants and agreements, and the rights under such restrictive covenants and agreements of persons not joined as defendants, by name, shall not be prejudiced. The court in its discretion may insert in the order for the issuance of the summons a direction to the effect that if the owners of the surrounding contiguous properties, or any particular parcel or portion thereof, or any such owners as the court may describe or indicate, are not made defendants by name, their rights shall not be prejudiced.

§ 3. Section three hundred and eighty-five of such chapter, as amended by chapter six hundred and twenty-seven of the laws of nineteen hundred and ten, is hereby amended to read as follows:

§ 385. Commencement of the action. On the complaint and all the other papers and documents filed or referred to in the making of the application for registration, the court after reading and considering the same, shall determine whether or not the plaintiff appears to have a title that should be registered. For the purpose of arriving at such determination, the sufficiency of the complaint, abstract, searches, official examiners certificate of title, and other papers, required to be filed, or filed with the complaint, shall be for the court, and the court may require a further examination of the title, to be made by the same examiner who has made the certificate, or by another official examiner, and it may also require a further or amended survey, or certificate, or additional affidavits, or any other proper evidence or proof. In all proceedings subsequent to the determination by the court that the plaintiff appears

to have a title that should be registered, the allegations and statements of the examiner's certificate of title, and of his abstract and searches, and in the survey shall be prima facie and presumptive evidence of the facts so alleged and stated, and if any defendant controverts any allegation or statement contained in said certificate of title, abstract, or searches, or survey, the facts controverting such allegation or statement must be specifically pleaded and set forth, and except as in this section otherwise provided must be established affirmatively by the defendant pleading or setting forth the same. The court may require, at any time, any amendment or modification of said official examiner's certificate, or any further or amended survey or certificate, or any additional evidence or proof that may be necessary or proper. All the allegations and statements in said certificate, abstract, searches and survey shall be taken and construed as statements of fact, unless they are expressly declared therein to be conclusions or opinions. Where a party has controverted in his pleading specifically an allegation or statement contained in said certificate of title, abstract, searches or survey, any party who has appeared in person or by attorney or counsel, or by guardian, at the trial may require that the ordinary rules of evidence and proof, unaffected by this section, shall apply to the matters so controverted.

When the court is satisfied that the plaintiff appears to have a title that should be registered, it shall make an order directing that the action to register such title be commenced by the issuance of the summons, and the service of the summons and the notice required by section three hundred and eighty-six of this chapter. The summons shall be made and have the form, and it and said notice shall be served in the manner prescribed by the code of civil pro

cedure for a summons in an action in the supreme court; except that, when service is directed to be made by publication, it shall be ordered to be made in only one newspaper designated by the court once a week for four successive weeks, and such service so made shall be complete at the end of twenty-eight days from and including the day of the first publication; and except further that any defendant on whom personal service is made without the state pursuant to such an order shall appear, answer, or demur within twenty-eight days after such personal service; and except further that an order for service of the summons and said notice shall be a court order, and the summons served pursuant thereto need not be accompanied by any notice except that prescribed and required by section three hundred and eighty-six of this chapter; and except further as otherwise provided herein. Before making an order for service of the summons and said notice by publication or other form of substituted service, the court must be satisfied by proof of the facts that the plaintiff has been or will be unable, with due diligence, to make personal service of the summons. The question of the sufficiency of such proof shall be for the court; and an allegation, in an affidavit or other duly verified statement recited in said order, that the plaintiff has been or will be unable with due diligence to make personal service of the summons, or that after diligent inquiry a defendant remains unknown to the plaintiff or that the plaintiff is unable to ascertain whether the defendant is or is not a resident of the state, or that plaintiff cannot, with reasonable diligence, ascertain a place or places, where the defendant would probably receive matter transmitted through the post-office, may be taken to be sufficient proof thereof. An order containing such a recital, and made on such proof, shall

not be drawn in question after six months from the time when the final judgment in the action is entered. Service of the summons and said notice on the people of the state of New York shall be sufficiently made by mailing a copy thereof, together with a copy of the complaint (but not of the official examiner's certificate of title or abstract or other papers filed with the complaint and application) securely inclosed in a postpaid wrapper, and directed to the attorney-general of the state of New York. The attorney-general may require the service also of a copy of the official examiner's certificate of title and of the abstract of title. Upon and after the issuance of the summons, the court's jurisdiction shall be the same as in an action in the supreme court in which no order for the commencement of the action is required; and the action shall be governed by, and shall proceed according to, the laws of this state and the rules of court relative to such an action, as far as the same are not expressly abrogated or modified by this article.

§ 4. Section three hundred and eighty-eight of such chapter, as inserted by chapter six hundred and twentyseven of the laws of nineteen hundred and ten, is hereby amended to read as follows:

§ 388. Guardian ad litem. In every action to register title, the court shall make an order appointing a disinterested attorney, other than the official examiner by whom the title was examined and certified, to act as guardian ad litem for all minor parties to the action and for all other parties under disability. The application for the appointment of said guardian may be made by the plaintiff ex parte at any time after the time to answer of such of the defendants as are served personally has expired, and the service

of the summons upon such of the defendants as are not served personally within this state is complete. It shall be the duty of any such guardian ad litem actively to ascertain and protect, as far as is reasonably possible, the terests of all parties to the action known to be or possibly in any way incapacitated. The compensation of

guardian shall be fifteen dollars, unless the court direct otherwise. Any other guardian ad litem may also be appointed in the manner set forth in the code of civil procedure for any of the defendants who are infants or persons incapacitated. Each guardian ad litem so appointed shall report to the court that he has carefully examined the papers required to be filed with the application, and the proofs of service and publication, and that he verily believes after such examination that the facts are as he shall report them.

§ 5. Section four hundred and thirty-four of such chapter, as inserted by chapter six hundred and twenty-seven of the laws of nineteen hundred and ten, is hereby amended to read as follows:

§ 434. Form for examiner's certificate of title. The examiner's certificate of title shall be substantially in the following form with such additions or modifications as may be necessary by reason of laws concerning records affecting the particular locality in which the property is situate and with such additions or modifications as the court may require or deem proper.

The abstract of title accompanying said certificate shall include a verbatim copy of so much of the following instruments occurring in the chain of title set forth in the certificate or stated by the examiner to affect the premises, as applies to the property the title to which is sought to