Majority
p. 458JONES a. DERBY. Supreme Court, First District; General Term, April, 1855.
Headnote
Service oe Process.—Residence.Judgment and execution will be set aside where, under the “ Act to facilitate the Service of Process in certain cases,” (Laws of 1853, chap. 511), service of summons was made at the defendant’s residence and place of business, New York, while the plaintiff knew he was absent in California on business.
Motion to set aside judgment.
The facts sufficiently appear in the opinion.
The evidence in this case shows that defendant’s residence and place of business was in the city of Hew York, and it was so known to the plaintiff at the time the summons was served at his place of residence, and that it was also known that defendant was then in California on business. The plaintiff’s affidavits, upon which the order to serve the summons was granted, shows all these facts.
The act entitled “ an act to facilitate the service of process in certain cases,” does not apply to the present case. In this
p. 459
case there is no evidence that the defendant “ cannot be found, or if found, avoids or evades such service.”
This question is ably considered by Harris, Justice, in the case of Collins a. Campfield, (9 How. Pr. R., 519).
Judgment and execution set aside with costs, and ten dollars costs of this motion.