Andrews v. Borland — 10 N.Y. St. Rep. 396

Majority

p. 396

John Andrews, Resp’t, v. Amelia D. Borland et al., App’lts.

(Supreme Court, General Term, Second Department,

Filed July 1, 1887.)

Headnote

Mortgage—Foreclosure—Order of publication—Sufficiency of— Affidavit.

The affidavit on which an order of publication was made in a suit to foreclose a mortgage stated "that the defendant is nota resident of the state, but resides in the city of Portland in the state of Oregon, as deponent, is informed by making enquiries of one * * * a friend or relative of said, J. M.” Held, that the affidavit was sufficient.

This appeal is from an order made at special term, Kings county, directing John A. Schilling, the appellant, to com

p. 397

píete his purchase, made at a sale under a judgment of foreclosure in the above action. In the chain of title was a prior foreclosure action entitled Jerome Hust'ed v. John Mullarky. That action was brought in September, 1884, and the principal question upon this appeal is whether the order for service by publication of the summons on the defendant in that action can be sustained upon the affidavit on which it was granted. The defendant in that action owned the fee and did not appear. The statements in the affidavit so far as they affect the present question are;

First. " That the defendant is not a resident of the state, but resides in the city of Portland,-in the state of Oregon, as deponent, is informed by making enquiries of one William McLaughlin, at No. 330 West Thirty-eighth street in the city of New York, a friend or relative of said John Mullarky.

Second. " That as deponent is informed and believes the defendant John Mullarky is of full age, and cannot, after due diligence and enquiry, be found within this state.”

John Andrews, resp’t in person; Emanuel & Taylor, for app’lt.

The affidavit for the order of publication was sufficient. The statement of the non-residence of John Mullarky is absolute. It is true that the sources of information are given, and show that the knowledge was acquired of a friend or relative, but residence can ordinarily be proved in no other way.

The essential fact is that the person to be served was a resident of the state of Oregon, and that fact is absolutely proven by affidavit so that the court could pass upon the application. The statements that the defendant in the foreclosure suit owned the property to be foreclosed, and that he could not, after due diligence and inquiry, be found within this state, are sufficiently stated, and taken together, the court had jurisdiction to make the order of publication. It appears the plaintiff’s attorney, in that action, made enquiry of a friend or relative, and was informed of his non-residence, and that he was not in the state.

The order appealed from seems to be well supported by the case of Kennedy v. The N. Y. Life Ins. and Trust Co. ( 101 N. Y., 487 ).

The order should be affirmed, with costs and disbursements.

Dykman and Pratt, JJ., concur.