Overton v. Barclay — 35 N.Y.S. 326

Majority

p. 326

OVERTON v. BARCLAY et al.

(Supreme Court, General Term, First Department.

October 18, 1895.)

Headnote

Summons—Substituted Service on Infant—Compliance with Order.

An order requiring a substituted service on an infant, which directs it to be made by leaving a copy at the infant’s residence with a person of proper age, or, if such a person cannot be found, “by affixing the same to the outer or other door of said defendant’s residence, and by depositing another copy thereof,” addressed to defendant, in the post office, only

p. 327

requires a copy to be deposited in the post office in case service cannot be made by leaving a copy at defendant’s house with a person of proper age.

Appeal from special term, New York county.

Action by Silas F. Overton against Emily F. Barclay and others to foreclose a mortgage. A judgment of foreclosure was entered, and the property sold thereunder. William H. Hall became the purchaser, and he moved to be relieved from his purchase. From an order denying such motion said Hall appeals. Affirmed.

The order for substituted service on the infant defendant is as follows:

Ordered, that service of said summons upon said defendant, Emily F. Barclay, be made by leaving a copy thereof and of this order at the residence of said defendant, No. 74 West 134th street, in the city of New York, with a person of proper age, if, upon reasonable application, admittance can be obtained and such a person found who will receive it, or, if admittance cannot be so obtained or such a person found, by affixing the same to the outer or other door of said defendant’s residence, and by depositing another copy thereof, properly inclosed in a post-paid wrapper addressed to her at her said place of residence, in the post office of the said city and county of New York.

Argued before VAN BRUNT, P. J., and O’BRIEN and PARKER, JJ.

Robert E. Deyo, for appellant.

H. H. Snedeker, for respondent.

The purchaser’s objection to taking title is founded on the claim that service of the order appointing a guardian ad litem for the defendant, an infant over 14 years of age, unless within 20 days she should procure one to be appointed, was not made. The order was not personally served upon her, because she could not be found, and subsequently the plaintiff caused a petition to be presented to the court, in which it was stated, among other things, that the infant secreted herself to avoid service. Thereupon an order for substituted service was made, and the purchaser argues that the provisions of the order in respect to manner of service were not complied with; that it required two things to be done: “First, that the order appointing the guardian and the order for substituted service should both be left at the residence of the infant with some person of proper age; second, that copies of both orders be deposited in the post office.” It is true that the orders were not deposited in the post office, and, if the purchaser is right in his claim that the order required it to be done his position would be well taken.. But we do not so read it. The provision for service of the order upon a person of proper age at the residence of the infant was by the order made sufficient. Only in the event of the failure to make such service was the alternative of affixing the orders to the outer door and mailing them provided for. The papers were served at the residence of the infant upon her mother, and thus the order was complied with.

The order should be affirmed, with $10 costs and printing disbursements.