Haight v. Husted — 5 Abb. Pr. 170

Majority

p. 170

HAIGHT a. HUSTED.

Supreme Court, Second District;

General Term, July, 1857.

Headnote

Action against Son-resident.—Jubisdiotion.—Pbopebty within this State.

Where plaintiff procured an order for publication of summons on an affidavit that defendant had property within this State, and it appeared on motion to vacate the judgment that such property consisted only of a team driven temporarily within the State with the purpose of returning forthwith,—Held, by the special term that the order for publication was irregular, and that plaintiff’s proceedings must be set aside.

The order of the special term affirmed on appeal to the general term.

Appeal from an order of the special term vacating a judgment and execution for irregularity.

In this action a judgment was recovered by plaintiff, founded on a summons ordered to be served by publication, and was set aside by the special term. The proceedings before the special term were reported (4 Ante, 348).

The cause now came before the general term^[1] on appeal by the plaintiff from the order below.

S. McKissock, for the appellant.

J. E. Beers, for the respondent.

Two of the members of the court were in favor of affirming the order, upon the grounds stated in the opinion delivered below; but the presiding justice thought it unnecessary to express an opinion on that point. He was of opinion that the plaintiff’s proceedings were a fraud upon the statute; that the plaintiff, having ascertained that the defendant’s team had come within the State, had made the affidavit on which to obtain the order of publication, and had therein stated that defendant had property within the State ; and had made use of that affidavit to obtain the order of publication, at a subsequent day, and when

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he must have known that the defendant’s property had been withdrawn from the State, and was no longer within the jurisdiction of the court.

The other members of the court concurred in the opinion that the proceedings of the plaintiff were a fraud upon the statute, and that such fraud was a sufficient reason for setting aside the judgment and proceedings.

The order appealed from was affirmed, with costs.