Clarkson v. Butler — 159 N.Y.S. 343

Majority

p. 343

(173 App. Div. 143)

CLARKSON v. BUTLER.

(No. 8872.)

(Supreme Court, Appellate Division, First Department.

June 2, 1916.)

Headnote

Process <g=>li59—• Substituted Service—Vacation of Order.

Whore an order for substituted service on defendant was made on affidavits alleging his continuous absence from the state; for more than six months, and, upon his failure to appear, proceedings were had resulting in judgment against him, but he presents proof showing conclushely that he was not absent from the state on the day the order was made, and had not been absent therefrom for more than two months, the order will be reversed, and motion to vacate tiio order for service, the service, and the judgment entered thereon, granted.

[Ed. Note.—For other cases, see Process, Cent. Dig. §§ 221, 222; Dec. Dig. <S^lo!).]

<§3^For other cases see same topic & KISY-NUMBDR in all Key-Numbered Digests & Indexes

Appeal from Special Term, New York County.

Action by Geoffrey T. Clarkson, as liquidator of the Sovereign Bank of Canada, against George P. Butler. From an order denying a motion to vacate and set aside service of summons by publication, and the judgment entered thereon, plaintiff appeals. Order reversed, and motion granted.

Argued before CLARKE, P. J., and SCOTT, DOWLING, SMITH, and PAGE, JJ.

H. A. Cushing, of New York City, for respondent.

The plaintiff obtained an order for substituted service of the summons under subdivision 3 of section 438, Code of Civil Procedure, on the ground that defendant, being an adult and a resident of the state, had been continuously without the state more than six months before the granting of the order, and had not made a designation of a person upon whom a summons might be served, and that personal service upon the defendant within the state could not, after diligent effort, be made.

The order for substituted service was made on June 28, 1915, and the affidavit alleging defendant’s continuous absence from the state

p. 344

for more than six months was verified June 25, 1915. Upon defendant’s failure to appear, proceedings were had which resulted in a judgment against him for a large sum of money. He now presents proofs showing very conclusively that he was not absent from the state on the day the order was made, and had not been absent therefrom, at least since April 8, 1915. So the essential fact stated in the affidavit upon which the order for substituted service was made was erroneously stated.

It follows that the order appealed from must be reversed, with $10 costs and disbursements, and the motion to vacate the order for substituted service, and the service made thereunder, and the judgment entered thereon, must be granted. Order filed. All concur.