Majority
p. 218(120 App. Div. 874) SINNOTT v. ENNIS. (Supreme» Court, Appellate Division, First Department. June 28, 1907.) Argued before INGRAHAM, McLAUGHLIN, HOUGHTON,. CLARKE, and LAMBERT, JJ.
Headnote
Process—Service by Publication—Affidavit—Sufficiency.An affidavit by a plaintiff in partition, which alleges that defendants named are nonresidents of the state, and reside in and are subjects of Great Britain and Ireland, and have always been residents thereof, and that plaintiff is unable to malte personal service of the summons on such defendants, justifies a finding that such defendants cannot, with due diligence, he found within the state, and process may he served on them by publication, and, when so served, the court acquires jurisdiction of the person of such defendants.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 40, Process, § 118.]
Submission of controversy on an agreed state of facts by Frank J. Sinnott against Joseph L. Ennis. Judgment directed for plaintiff. The plaintiff in a partition action filed an affidavit on a motion for service of process on designated defendants by publication, and averred that such defendants were nonresidents of the state, and resided in and were subjects of Great Britain and Ireland, and had always been residents thereof, and that personal service on them could not be had.
Daniel D. Harned, for plaintiff.
Paul Gorham, for defendant.
We think the court acquired jurisdiction, that the facts alleged in the affidavit were sufficient to justify a finding that the defendants cotild not with due diligence be found within this state, and that the sale under the judgment was therefore valid.
It follows that judgment must be directed for the plaintiff, but under the stipulation, without costs.