Majority
p. 93Bank of Long Island, Respondent, v. George W. Gregory and Mae T. Gregory, Appellants. Second Department, April 23, 1909.
Headnote
Process—substituted service in Municipal Court — appeal.No separate appeal lies from an order of the Municipal Court of the city of New York authorizing a substituted service of summons. But an appeal from the j udgment brings up for review the validity of such order.
The jurisdictional facts necessary to the granting of an order for substituted service of summons are the residence of the defendant in the city, the issuing of an alias summons and proper and diligent effort to serve the same on the defendant, which effort must have been unsuccessful because his place of sojourn cannot be found. These facts must be established by the affidavit of a person not a party to the action and by the return of a city marshal.
The determination of the judge that-the evidence contained in such affidavit and return is sufficient to warrant an order for substituted service is controlling upon appeal. So, too, a determination that further evidence is unnecessary is not subject to review.
Appeal by the defendants, George- W. Gregory and another, from a judgment of the Municipal Court of the city of Hew York, borough of Queens, in favor of the plaintiff, rendered on the 6th day of January, 1909, and also from an order bearing date the 30th day of December, 1908, directing substituted service of summons.
Samuel Schlesinger, for the appellants.
C. H. Street [Leander B. Faber with him on the brief], for the respondent.
This action was brought in the Municipal Court to recover the sum of $275 upon a promissory note made by the defendant Mae T. Gregory to the order of her codefendant George W. Gregory, which was indorsed by him and transferred to the plaintiff for value and before maturity. Upon presentation and default in payment the note was duly protested. The summons was issued on the 17th day of December, 1908, returnable on the 28th day of the same month. Plaintiff was unable to procure service to be made on the defendants, and on the 26th day of December, 1908, an alias
p. 94
summons was issued returnable on the 6th day of January, 1909. On the -30th'day of December, 1908j an order was obtained for substituted service, and on the same day said summons was served in accordance with the terms of such order. On the return day of the summons the defendants did not appear, and judgment was entered by default. - On the 9th day of January, 1909,. the defendants appealed from the said judgment, and also from the order directing substituted service of such summons.' A separate appeal! from such an order is not authorized by any provision of the Municipal Court Act. (Laws of 1902, chap. 580, §§ 257,310;[1] Great Northern Moulding Co. v. Bonewur, No. 1, 128 App. Div. 101 ; Nolte v. Seymour, 127 id. 178 ; Beebe v. Nassau Show Case Co., 41 id. 456 ; Friedberger v. Stulpnagel, 59 Misc. Rep. 498 ; 112 N. Y. Supp. 89 .) An appeal from the judgment, however, is sufficient to present for review the validity of such order. (Friedberger v. Stulpnagel, supra.) The Municipal Court Act contains the following provisions: “ An order for the service of a summons upon a defendant residing within the city may be.made by the court in the district in which an action is brought after an alias, summons has been duly issued, upon satisfactory proof by the affidavit of a person nota party to the action, and the return of a marshal, that proper and diligent effort has been made to serve the summons upon the defendant, and that -the place of his sojourn cannot be found, or if lie is within the city.that he avoids service so that personal service could not be made.” (Laws of 1902, chap. 580, § 32.) The jurisdictional facts necessary to warrant the granting of such an order are residence of the defendant in the city, the issuing of an alias summons and proper and diligent effort to serve such summons upon the defendant, which efforts have been unsuccessful because his place of sojourn cannot be found. The latter facts must be established by the affidavit of a person not a party to the action and the return of a city- marshal. If such affidavits and return are presented upon an application for such-an order which shows some effort to ascertain the place of sojourn of the defendant and that it cannot be found, the determination by the judge to whom the application is made that such evidence is satisfactory is controlling. This has always been the rule with regard to an order
* See Laws of 1907, chap. 664, amdg. § 310.—[Rep.
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for substituted service under the provisions of the Code of Civil Procedure, and its provisions are analogous to those of the Municipal Court Act. (Code Civ. Proc. § 435 ; Haswell v. Lincks, 87 N. Y. 637 .) The affidavits upon which the order complained of was granted show that from statements made by the postmaster at Woodhaven the place of residence of the defendants was at No. 544 Benedict avenue, Woodhaven. Persons residing in the neighborhood confirmed these statements. The affidavit of a clerk in the employ of the attorneys for the plaintiff shows that on the seventeenth, eighteenth, nineteenth, twenty-first and twenty-second of December he called at the premises above described, but was unable to obtain admission to the house, which appeared to be closed.. The affidavit of one of the city marshals shows that on the twenty-sixth of December he called at said premises, and that he was not able to obtain admission to the house, and that daily' newspapers bearing date on the twenty-second, twenty-third, twenty-fourth and twenty-sixth days of December, respectively, were lying on the porch. This would indicate that the house had not been actually occupied since the said twenty-second day of December. Of course, further evidence might have been required by the' judge who granted, the order to the effect that inquiries had been unsuccessfully made from persons residing in the neighborhood with a view of ascertaining where the defendants had gone while absent from their place of residence. It was for him to determine whether to require such evidence or not. His determination that such evidence was unnecessary cannot be reviewed by this court.
The judgment appealed from should be affirmed, with' costs, and the appeal from the order for substituted service should be dismissed," without costs.
Hirschberg, P. J, Gaynor, Rich and Miller,. JJ., concurred.
Judgment of the Municipal Court affirmed, with costs, and the appeal from the order for substituted service dismissed, without costs.
Cases cited
- Friedberger v. Stulpnagel 59 Misc. Rep. 498 p. 94
- Haswell v. Lincks 87 N. Y. 637 p. 95