Dennin v. Duffy

This is a motion to set aside an order of publication granted under subdivision 3 of section 438 of the Code of Civil Pro

[1] The affidavits referred to in and made a part of the moving papers and stated by Mr. Stein to be filed in the office of the clerk of Monroe county June 7, 1913, were constructively before the justice who granted' the order. This practice is that commonly followed under such circumstances; papers which are part of files of the court’s clerk being construed as at all times in the possession of the court or judge, as the case may be. The affidavit of William PI. Pollock, also therein referred to, was stated to be in the possession of Mr. Justice Benton, and a copy thereof to be attached. The copy however, was not so attached, but the omission is not, in my judgment, a necessarily fatal defect. The order will be sustained if the remainder of the moving papers contain the necessary jurisdictional statements. Such an oversight would then be an irregularity only and could, if desired, probably be cured by a subsequent filing.

[2] The court cannot amend any proceedings necessary to confer jurisdiction, but, where jurisdiction is once obtained, they are free to sustain such orders, overlooking or rectifying that which is simply irregular as justice may seem to require. Waters v. Waters, 7 Misc. Rep. 519 , 27 N. Y. Supp. 1004 ; McCully v. Heller, 66 How. Prac. 468; Von Rhade v. Von Rhade, 2 Thomp. & C. 491.

[3, 4] Section 439 of the Code of Civil Procedure provides that such an order must be founded upon ¡a verified complaint, and proof by affidavit of the facts required by section 438. In this instance that section required the affidavit to show that Loretto Duffy was an adult, a resident of the state of New York, and had been continuously without such state more than six months next before the granting of the order, and that she had not made a designation of a person upon whom to serve a summons in her behalf. All these facts are clearly and distinctly stated in the various affidavits upon which the order in question was obtained. The allegations to that effect are accompanied and supported by circumstantial details sufficient to free them from the criticism of being conclusions only, and not only show her to have been a resident of the state of New York, but expressly allege that her resi- ' dence was upon Lake avenue in the city of Rochester, which statement was in fact true.

Section 440 of the Code treats of the order itself and provides that it must contain either a direction “that, on or before the day of the first publication, the plaintiff shall deposit in a specified post office one or more sets of copies of the summons, complaint, and order, * * * directed to the defendant, at a place specified in the order, or a statement that the judge, being satisfied, by the affidavits upon which the order was granted, that the plaintiff cannot, with reasonable diligence,

The Code is silent as to when, or where, or how he is to receive the information to carry out this direction, but it is customary to include it in the affidavit provided for in section 439. Under these sections all that was required of the plaintiff to show by the moving papers concerning defendant’s residence was that she was a resident of the state of New York, and the order thereon must, in addition to that for publication, have contained a direction that the papers be mailed to her at a place where the judge deemed it likely that matter mailed in the post office would be received. There appears to be no requirement that the street and number, nor even the town or city, of a defendant’s residence be stated in the affidavit, and any as to a place where mail will probably be received is only to be inferred. That the bare statement of residence within the state must be supported by evidence of such investigation and. facts discovered as will raise a fair presumption that it is true is, of course, well understood, but it is readily seen that facts sufficient for that purpose might be obtained where the exact locality of residence within the state could not be learned. It follows that the only object of including defendant’s street address among the other statements in the affidavit is to give the judge such information as will enable him to decide where mail addressed to defendant Would probably be received, and to include in the order a direction accordingly.

' The matter is not jurisdictional. The fair intendments of the sections are that the plaintiff shall use due diligence to ascertain where mail will probably be received by a defendant and impart the information to the judge granting the order. If no information is obtained, mailing is dispensed with, and, if incorrect information is received and acted upon, the defendant is in no worse plight. In either event the plaintiff has presumably done his best, and with that the defendant must be content. A debtor who has left the state cannot justly require of his creditor anything beyond reasonable effort to locate him. No guaranty of success is imposed either by law or in equity. A substantial compliance with the requirements of the Code is all that is necessary to give validity to proceedings under these sections (Brooke v. Saylor, 44 Hun, 554 ), and this is certainly so of a requirement which is inferential only.

It is quite likely, where, because of such a mistake, a defendant remained ignorant of the proceedings and judgment ran by default, the default would be opened and the defendant allowed to come in and answer, if application therefor was made within a reasonable time, and a real defense was made apparent. Beyond this the court will not interfere in such cases.

Motion to vacate and set aside the order of publication granted herein by Mr. Justice De Angelis September 15, 1913, is denied, with costs. So ordered.