Sabin v. Kendrick — 2 A.D. 96

Majority

p. 96

William E. Sabin, Respondent, v. William A. Kendrick, Appellant, Impleaded with Another.

Headnote

Summons—order to publish or serve personally without the State—failure to. state .the address of the defendant—personal service without the State made more than thirty days after the order and .after an attachment was granted is good—jthe attachment may for that reason be vacated..

An order of publication need not contain both a requirement that the summons shall be published and also á further provision that service of the summons may be made without the State, at the option of the plaintiff.

When the .plaintiff makes no election between the. two modes of service and inserts both provisions in the. order, the omission to specify the place to. which copies of the summons, complaint and order, addressed to the defendant, shall be directed is not a jurisdictional defect which is fatal to the order where the papers are served personally out of the State.

Where the order of publication is made inore than thirty days before the date ■when personal service of the' summons was made without the State and a warrant of attachment has also been granted in the action against the property of the defendant more than thirty days before such service of the summons without the State, the effect is that the service of the summons is good, but the delay entitles the defendant to have the attachment vacated.

Appeal by the defendant, William A. Kendrick, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 31st day .of December, 1895, denying his motion to vacate an order of publication and'set aside the service of the summons in' the'action. The order of publication provided as follows : ...

“ Upon the summons annexed and duly verified complaint herein showing a sufficient cause of action against the defendants, and upon the annexed affidavit of Julius M. Ferguson, verified October —, 1895, by which it appears to my satisfaction that said defendants are not residents of this State, and that the- plaintiff will be unable, with due. diligence, to make personal service of the summons on said defendants within this State. Now, on motion of J. M. Ferguson, attorney for plaintiff, it is

“ Ordered, that service of the summons in the above-entitled action upon the defendants be made by publication thereof in two •newspapers, viz., The Brooklyn Eagle and The Brooklyn Oitízen, ■ both published in the county of- Kings,, once a week for six sue-.

p. 97

cessive weeks, or at the option of the plaintiff by service of said summons and a copy of said complaint and of this order without the State upon the defendants personally. That on or before the day of the first publication as aforesaid the plaintiff deposit in the general post office in the city of Brooklyn a copy of the summons and complaint hereto annexed, and of this order contained in a securely closed post-paid wrapper, directed to said defendants.” ■

William B. Sage, for the appellant.

J. M. Ferguson, for the respondent.

The learned counsel for the appellant concedes that an order of publication need not contain both the requirement, that the summons shall be published and the provision that service may be made without the State, at the option of the plaintiff. (Matter of Field, 131 N. Y. 184 .) He insists, however, that when the plaintiff makes no election between the two modes of service, but inserts both provisions in the order, the omission to specify a place to which copies of the summons, complaint and order shall be directed, addressed to the defendant, is a jurisdictional defect which is fatal to the order.

It does not seem to us that this view is correct. No doubt the order (of publication in the present case was defective, in that it merely provided for the mailing of the papers “directed to said defendants” without specifying any place to'which they were to be addressed. But inasmuch as everything relating to the publication and mailing might "have been omitted without affecting the validity of that part of the order which authorized the personal service of the summons without the "State, we do not see how the omission of one thing relating to such publication and mailing can invalidate it. The order remained perfect as an order permitting the plaintiff to have the summons served upon the defendant personally outside the limits of New York, and the summons was so served, in the State of Connecticut, on the 25th day of October, 1895.

The order of publication was made more than thirty days before that date and a warrant of attachment had also been granted against the property of the defendant more than thirty days before.

p. 98

Section 638 of the Code of Civil Procedure, which is contained in the title relating to the provisional remedy of attachment, prescribes that personal service of the summons must be made upon the defendant against whose property an attachment is granted within thirty days after the granting thereof; or else, before the expiration of the same time, service of the summons by publication must be commenced or service thereof must be. made without the State' pursuant to an order obtained therefor. There was no attempt to publish the summons in the case at bar* but it was served in Connecticut pursuant to the order, as already stated. We do not think that the lapse of more than thirty days had any effect upon the service of the summons without the State or upon the order authorizing such service. The effect of the delay was limited to the attachment, which the defendant thereupon became entitled to have vacated. The service of the summons without the State would have been perfectly good although there had been no-attachment whatever. The Code, in the provisions relating to attachment, nowhere declares that the action shall abate or the court be ousted of jurisdiction by reason of a delay of more than thirty days in the personal service of the' summons or the beginning of the publication thereof; and in the absence of such a provision in express terms we can perceive no good, reason for extending the effect of the omission beyond the avoidance of the attachment.

The order appealed from must be affirmed, with- costs.

All concurred, except Cullen, J., not sitting.

Order affirmed, with ten dollars costs and disbursements.

Cases cited

In re Field 131 N. Y. 184 N.Y. 1892-02-12 p. 97