Tuller v. Beck — 20 Abb.N. Cas. 425

Majority

p. 425

TULLER v. BECK.

N. Y. Court of Appeals;

February, 1888.

[Affirming 46 Hun, 519 .]

Headnote

Attachment; service of summons Py implication.] The provision of Code Civ. Pro. § 638, that personal service of the summons must be made in attachment cases, within thirty days or else publication must be commenced within that time, and must be completed, is to be construed in connection with the provision of . section 424, that voluntary appearance is equivalent to personal service.^[2]

The same.} Hence, where within thirty days' after the granting of an attachment, publication was commenced, but after the thirty days had expired the defendant voluntarily appeared,—Held, that the attachment stood, though further publication was thereupon abandoned.

■ Appeal from an order.

Melvin L. Tuller sued Joshua J. Beck, in the supreme court, and obtained an attachment against the defendant’s property on April 8, 1887, upon the ground that he had departed from the State with intent to defraud his creditors. The attachment was levied on the same day on certain property in Yonkers. On April 23, 1887, an order for publication of the summons was obtained, and the publication was commenced and' continued until May 17, 1887,

p. 426

when the defendant voluntarily, and for all purposes, appeared in the action, and consented-to a judgment in the action “without further delay or further notice to me.”^[2] On May 17, 1887, judgment was entered on this.appearance and consent, and the attached property sold.

Frederick O. Pierce obtained an attachment for the same reason, April 9, 1887, and commenced publication of the summons on April 21, 1887, and it was continued until the same was completed, for the six weeks prescribed by law.

An execution on the Tuller judgment was given to the sheriff, and on April 27, 1887, he sold the attached property, and at once the money was paid over to Tuller on his judgment.

Pierce moved to compel the sheriff to pay over the fund to him, on the ground that the lien of Toiler’s attachment was lost by failure to complete the publication.

The Special Term held that the statute must be construed literally ; and ordered the sheriff to satisfy the Pierce judgment, so far as the proceeds of sale would do so ; but refused to direct, on this motion, that Tuller refund to the sheriff.

p. 427

The General Term reversed this order on the same grounds as those stated in the following opinion of the court of appeals.

Pierce appealed to the court of appeals.

Ralph E. Prime (R. E. & A. J. Prime & Burns, attorneys) for the appellant.

W. H. Robertson (Close & Robertson, attorneys), for the respondent.

We are of opinion that the attachment assailed by the subsequent lienors was not void because the publication of the summons, regularly ordered and commenced, was suspended before the completion by reason of the appearance of the defendant in the action waiving further publication and consenting to the entry of judgment against him. The object of the publication is by a substituted service to bring the defendant into court, and the language of the case (§ 638) that “ if publication has been or is thereafter commenced, the service must be made complete by the continuance thereof,” means simply that when the service relied upon as the ground of jurisdiction is publication, that must be not partial and merely commenced, but continued and entirely complete. In our judgment the provision does not forbid or prevent the equivalent personal service permitted by section 424. Substantially this was decided in Coffin v. Rich ( 91 N. Y. 608 ), and we are unwilling to hold that the fact of defendant’s appearance after the thirty days, while publication was running, commenced before the thirty days, should compel a different decision. While the strict letter of the section might admit of such construction, we do not think that is its true meaning or intent.

The order should" be affirmed with costs.

All the judges concurred.

Order affirmed with costs.