Matthews v. Gilleran

Headnote

1. Attachment against Non-Resident—Service by Publication.

In an action in which an attachment had been granted against property of defendant, as a non-resident, an affidavit to obtain an order for service of the summons by publication averred that plaintiff would be unable, with due diligence, to make personal service within the state, because he could not be found therein, and resided in another state, where was his place of business. Held, that this was proof of inability to make personal service, sufficient to sustain the attachment on motion to vacate.^[1]

2. Writs—Service.

After an order for service of a summons by publication, made under Code Civil Proc. N. Y. | 440, providing that service may be made by publication, as prescribed, “or, at the option of the plaintiff, * * * without the state, upon the defendant personally, ” etc., such personal service without the state is sufficient, without the publication and mailing of a copy of the summons.^[1]

Appeal from special term, Kings county.

Action by Frank A. Matthews against Peter Gilleran. An attachment against the property of defendant, as a non-resident, having been granted and levied on goods assigned by him for benefit of his creditors to Keys D. Brown, a motion was made by said assignee to vacate the attachment, and was denied. From the order denying his motion, said assignee appeals. An affidavit to obtain an order for service of the summons in the action by publicátion, made by a clerk and salesman in the employ of plaintiff, besides other averments, alleged “that deponent knows that the plaintiff will be unable,, with due diligence, to make personal service of the summons in this action on said defendant within this state; that the same cannot be so served because he cannot be found therein to make service upon him-; that he. cannot be found here, because he resides in the state of Rhode Island; that his place of business is in the state of Rhode Island; that his time is passed in said state in superintending the manufacture of woolen cloth, being the business car-, ried on by him.” Code Civil Proc. N. Y. § 440, relating to orders for service of summons by publication, provides that such an order must direct that service be made by publication in two newspapers, etc., “ or, at the option of the plaintiff, by service of the summons, and of a copy of the complaintand order, without the state, upon the defendant personally,” etc.; and that “it must also-contain either a direction that, on or before the day of the first publication, the plaintiff deposit, in a specified post-office, one or more sets of copies of the summons, complaint, and order, each contained in a securely closed post-paid-wrapper, directed to the defendant, at a place specified in the order, or a statement” dispensing with the deposit of such papers in the post-office. It appeared that the summons, complaint, and attaehment'in this case were served on defendant personally in the state of Rhode Island, and there had been no-publication thereof or deposit of papers in the post-office.