Hyperlawhypertext legal database McCracken v. Flanagan 5 N.Y.S. 338

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McCracken v. Flanagan

5 N.Y.S. 338 Court N.Y. Gen. Term Decision date 1889-05-18 English

Delivered by Dtkman, J.

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p. 338
McCracken v. Flanagan et al.
(Supreme Court, General Term, Second Department.
May 18, 1889.)

Headnote

Writs—Service by Publication—Affidavit.
CodeProc. N. Y. § 135, provides that in certain cases the court or judge may grant an order of "service of summons by publication, when it appears to his satisfaction by affidavit that the defendant is a non-resident, and that he cannot, after due diligence, be found within .the state. An affidavit, in a case where real property had been attached, alleged that “ defendant is a non-resident of this state, nor can be found therein, but has a place of residence ” in another, state. Held sufficient to sustain an order for service of the summons by publication, and that the judgment entered upon such service could not be collaterally attacked.
Appeal from circuit court, Westchester county.
The facts are stated in the opinion. Section 135 of the old Code of Procedure, relating to service of summons by publication, is as follows: “Where• the person on whom the service of the summons is to be made cannot, after due diligence, be found within the state, and that fact appears to the satisfaction of the court or a judge thereof, * * * such court or judge may grant an order that the service be made by the publication of a summons in either of the following cases: (1) Where defendant is a foreign corporation, etc.; (2) Where defendant, being a resident of this state, has departed therefrom with intent to cheat, etc.; (3) Where he is not a resident of this state.
p. 339
but has property therein, and the court has jurisdiction of the subject of the action.”
Argued before Barnard, P. J., and Dtkman and Pratt, JJ.
Eugene 8. Ives, for appellant. Thomas J. MeKee, (J ames W. Covert, of counsel,) for respondents.

This is an appeal from a judgment in favor of the defendant in an action for the recovery of real property. The facts which raise the question of law involved, and upon which the decision of the trial court was made, are these: Henry ICahle was the owner of the premises in 1867, and in May, 1869, he conveyed the same to Patrick McCracken, who died leaving a last will and testament by which he devised his interest in the premises to the plaintiff. In January, 1867, an action was commenced in the supreme court against Kahle by Lawrence Cartan, for the recovery of money in which there was an attachment issued, and under that attach ment the premises in question were seized by the sheriff, and a notice of the pendency of the action was also filed. Kahle did not appear in the attachment suit, and the summons was served by publication under an order for that purpose obtained upon an affidavit which was in the usual form, and contained these words: “That defendant is a non-resident of this state, nor can be found therein, but has a place of residence at Mattawan, in the state of Hew Jersey.” Judgment was entered in the action against Kahle on the 24th day of April, 1867, for $1,106.40, and under an execution issued upon that judgment the property was sold by the sheriff of Westchester county to Lawrence Cartan, the plaintiff in that action. Cartan received his deed for the property in pursuance of his purchase from- the sheriff, January 25, 1869, and he conveyed the premises to one Edward A. Flanagan, who conveyed the same to the defendant in this action. The plaintiff brought this action claiming the property by virtue of.the deed of conveyance from Henry Kahle to Patrick McCracken, and the devise of Mc-Cracken to the plaintiff. The claim of the plaintiff is based upon the insufficiency of the affidavit as a foundation for the order of publication, and he insists that the affidavit was insufficient to justify that order. As we have seen already, the affidavit states the non-residence of the defendant, and specifies ' his place of residence, and that he cannot be found in this state. Such facts, when laid before the judge who granted the order, empowered him to exercise his judicial function, and determine their sufficiency; and when he did so, and found them sufficient to establish the necessary facts to justify the order of publication, and made the order thereupon, such order was valid until it was set aside or adjudged invalid in a direct proceeding in that action to test its validity. The affidavit in question was sufficient to sustain the order for the service of the summons by publication, and the judgment entered upon such service was valid and regular. Kennedy v. Insurance & Trust Co., 101 N. Y. 487 , 5 K. E. Rep. 774; Andrews v. Borland, 10 N. Y St. Rep. 396 ; Jerome v. Flagg, 48 Hun, 351 , 1 N. Y. Supp. 101 ; Hudson v. Kowing, 4 N. Y. St. Rep. 866 . The sufficiency of the affidavit being the only question involved by this appeal, and that being found adequate to the end proposed, it follows that the title of the defendant’s grantor under the sheriff’s deed to him, in pursuance of the sale under the judgment, was valid, and that, the defendant derived a good title from his grantor. The plaintiff, therefore, took no interest in the property under the devise in the will of McCracken, because the grantor of his devisor had been divested of the title by the sale under the judgment against him in the attachment suit. The judgment should therefore be.affirmed, with costs. All concur.

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