Majority
p. 96KERNER against LEONARD. Supreme Court, First Dist. ; Special Term, Dec., 1873. Cited Abrahams v. Mitchell, 8 Abb. Pr., 125 , and cases there referred to. Cited Dykers v. Woodward, 7 How. Pr., 313 .
Headnote
Service oe Summons.Where service of summons is ordered to be made by publication, effecting service out of the State, before the expiration of the time for publication, does not shorten the time to answer.[1]
Charles H. Kernel* brought this action against Amasa Leonard and his wife, for the foreclosure of a mortgage on property situated in the city of New York. The defendants resided at Morristown, New Jersey. On November 3, 1873, the plaintiff obtained an order in the usual form for the service of the summons, by publication (once a week for six weeks). On November 5, 1873, the summons and complaint were served on the defendants personally at their residence in New Jersey. On November 26, the plaintiff applied to the court for judgment as upon a default, and on the 28th of the same month judgment was entered on his application, directing sale. Before the day of sale defendants moved to set aside the judgment as irregular in being prematurely entered, the defendants’ time to appear and answer not having expired.
J. R. Cuming, for defendants
Edmund Coffin, Jr., for plaintiff
The service of a summons out of the State is equivalent to publication, but does not shorten the time. The fact that the defendant lives out of the State is a good reason why it should not. I think the motion must be granted.