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McElfatrick v. Sire

120 N.Y.S. 64 Court N.Y. App. Term Decision date 1909-12-22 English

Delivered by GIEGERICH, J.

Contents

Majority

p. 64
McELFATRICK v. SIRE.
(Supreme Court, Appellate Term.
December 22, 1909.)

Headnote

Process (§ 73[1] )—Service—Substituted Service—Conditions Precedent—Effort to Serve Personally.
Where the process server was told, when he called at defendant’s residence,. that he did not live there at present, but was expected to return when repairs on the property were completed, and was directed to another address given for information as to defendant’s address, substituted service should not have issued until at least an attempt was made to locate defendant by inquiry at the address given.
[Ed. Note.—For other cases, see Process, Cent. Dig. § 87; Dec. Dig. § 73.[1] ]
Appeal from City Court of New York, Special Term.
Action by William H. McElfatrick against Henry B. Sire. From an order denying a motion to vacate an order directing substituted service, defendant appeals.
Reversed, and motion granted.
Argued, before GIEGERICH, GOFF, and LEHMAN, JJ.
Franklin Bien, for appellant.
Begg, Begg & Begg (Roderick Begg, of counsel), for respondent.

The affidavits upon which the order for substituted service was granted do not show proper efforts to find the defendant, Henry B. Sire, in order to make personal service. The affidavit of the process server who undertook to serve the summons and complaint states that when he called at the residence of Henry B. Sire on June 12, 1909, and asked if Henry B. Sire lived there, he was told that he did not at present, but that he was expected to return' as soon as the alterations upon the property were completed. The process server was also told at the same time by the person in charge of the house that he would have to go to Albert Sire, at 99 Nassau street, for information as to the address of Henry B. Sire.

There is no evidence that application was ever made to Albert Sire, at 99 Nassau street or elsewhere, for such information. Before resorting to substituted service, the, source of information thus indicated to the process server should have been made use of, or, at least, an attempt to do so should have been made by the process server, or some one else acting on behalf of the plaintiff.

The order should be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs. All concur.