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Malloy v. Lennon

49 N.Y.S. 1004 Court N.Y. City Ct. Decision date 1898-02-07 English

Delivered by O’DWYER, J.

Contents

Majority

p. 1004
(22 Misc. Rep. 542.)
MALLOY v. LENNON.
(City Court of New York, General Term.
February 7, 1898.)

Headnote

Process—Substituted Service.
Where it appeared from the affidavits of the process servers and the certificate of the sheriff that service of summons could not be obtained after diligent effort by calling at defendant’s residence, and no information could be obtained as to her whereabouts, the plaintiff is entitled to an order for substituted service, under Code Civ. Free. § 436.
Appeal from special term.
Action by Peter Malloy against Anna J. Lennon. From a judgment for plaintiff, defendant appeals.
Affirmed.
Argued before McCARTHY, SCHUCHMAN, and O’DWYER, JJ.
James, Schell, Elkus & McGuire, for appellant,
W. J. Foster, for respondent.

From the affidavits of the two process servers and ■the certificate of the sheriff, it appears that the defendant’s residence is No. 73 West Seventy-First street, in the city of New York, and that, after diligent effort to serve the summons herein by calling at said place of residence personally, service on the defendant could not be made, and no information could be had as to her whereabouts. We are of the opinion that the facts set forth in the affidavits entitled the plaintiffs to the order for substituted service. The order granted herein complies with the requirements of section 436 of the Code of Civil Procedure, and that section applies to the city court «of the city of New York.

The order appealed from should be affirmed, with costs. All con«cur.