Hyatt v. Wagenright — 18 How. Pr. 248

Majority

p. 248

SUPREME COURT.

Hyatt agt. Wagenright.

Headnote

An affidavit for an order for the publication of the summons must show the residence of the defendant, or that it is neither lenown to the plaintiff, nor can with reasonable diligence be ascertained by him.

And the order must state that a copy of the summons and complaint be forthwith deposited in the post-office, directed, &c. An order which merely states that “ a copy of the summons and complaint be deposited in the post-office addressed to the defendant,” is defective and insufficient.

At Chambers, Binghamton, Dec. 10, 1859.

Application for an order for the publication of the summons.

Henry Welch, for plaintiff.

The Code requires that the order for the publication of the summons “ must direct a copy of the sum

p. 249

mons and complaint to be forthwith deposited in the post-office,, directed to the person, to be served at his place of residence, unless it appear that such residence is neither known to the party making the application, nor can with reasonable diligence be ascertained by him." (§ 135, sub. 5.) The affidavits in this case do not show the residence of the defendant, or that it is neither knoion to the plaintiff, nor can with reasonable diligence be ascertained by him. Which facts they must show before I can grant the order applied for. The order presented is printed; but it is defective, as many that have been printed are. It states that a copy of the summons and complaint be deposited in the post-office, addressed to the defendant, and that is all. It should read that a copy be forthwith deposited, &c., for that is the language of the Code (§ 135, sub. 5); and it should also state that it be directed to the defendant, at his residence, naming it, if it is known.

For the foregoing reasons, I must return the papers in this case to the plaintiff’s attorney, without granting the order applied for.