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Hess v. Felt

60 Misc. 541 Court N.Y. Sup. Ct. English

Delivered by Giegerich, J.

Contents

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p. 541
Charles E. Hess et al., Plaintiffs, v. Abraham Felt et al., Defendants.
(Supreme Court, New York Special Term,
October, 1908.)

Headnote

Process — Service — Substituted service when authorized.
An order for the substituted service of a summons under section 435 of the Code of Civil Procedure will not be vacated because the plaintiff knows the defendant is somewhere in Canada, when it appears that the plaintiff cannot ascertain where in Canada he is sojourning.
Motion to vacate an order for substituted service of a summons and complaint.
Ferdinand E. M. Bullowa, for defendant Anton Parser, and motion.
Eisman, Levy, Corn & Lewine (Joseph J. Corn, of counsel), for plaintiffs, opposed.

The mere fact that the plaintiffs knew the defendant was somewhere in Canada, the efforts of the plaintiffs to find out in what place therein being unavailing, is not enough to warrant a vacation of the order for substituted service obtained under section 435 of the Code of Civil Procedure upon the ground that the defendant was without the State and that the place of his sojourn could not be ascertained. It is a fair inference from the moving papers that the family and business representatives of the defendant purposely and repeatedly withheld from the plaintiffs information of the defendant’s whereabouts in Canada. Under such circumstances it cannot be said that the place of the defendant’s sojourn has been ascertained and that the remedy provided in section 435 should be denied. Place of sojourn means a definite locality and not an entire country. Another ground on which it is sought to set aside the order is that it was not obtained until more than the sixty days prescribed

p. 542
by section 1670 of the Code of Civil Procedure had elapsed after the filing of the Us pendens. Such tardiness in procuring the order might affect the lis pendens, but not the jurisdiction. Brandow v. Vroman, 22 Misc. Rep. 370 ; Cohen v. Biber, 123 App. Div. 528 , 530.

Motion denied, with ten dollars costs.

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