Hall v. Hall — 23 Abb. N. Cas. 295

Majority

p. 295

HALL v. HALL.

N. Y. Supreme Court, First District, Chambers ;

September, 1889.

Headnote

Pvhiiaation; affidavits.] An order for the publication of summons in divorce, should not be granted where the only proof as to the non-residence of the defendant, is the plaintiff’s affidavit.^[1]

Motion for an order of reference.

This was an action for a divorce. The summons wa& served upon the defendant by publication, the order for publication having been obtained upon the plaintiff’s affidavit, without other proof, of the defendant’s absence from the State.

The defendant did not appear and the plaintiff now moves for an order of reference.

The application for order of reference must be denied. The service by publication is entirely insufficient. The order was granted upon the affidavit of the plaintiff alone, with no other proof of non-residence or removal from the State. As the plaintiff would not be permitted to serve the summons personally, certainly an order of publication should not be granted solely upon his affidavits. Such a procedure would open the door to the grossest fraud. The papers are defective in other particulars, which, however, it is not necessary to notice.