p. 591Melville L. Fuller, Resp’t, v. Joshua J. Beck, App’lt. Frederick O. Pierce, Resp’t, v. Same, App’lt.(Supreme Court, General Term, Second Department,Filed December 13, 1887.)Headnote
Practice—Attachment—Service op summons bt publication—Eppect OP A GENERAL APPEARANCE WHILE PUBLICATION IN PROGRESS—CODE Civ. Pro., § 434.In a case where an attachment was issued on the ground that the defendant had departed from the state with intent to defraud his creditors, service of the summons by publication was commenced within thirty days after the attachment was obtained; thirty days after the publication was commenced, and while it was progressing, the defendant appeared generally. Held, that the appearance was good to save the attachment (citing Gatlin v. Ricketts, 9L 1ST. Y,, 668). That a party can waive the service by publication as well as a personal service of the summons within thirty days. That the appearance dispensed with the necessity of continuing the publication. The fact that the proceedings are progressing by publication does not take away the effect of Code Civil Procedure, § 434.
R. E. & A. J. Prine, for resp’t; Close & Robertson, for app’lt.
Fuller obtained an attachment against the defendant on the 8th of April, 1887, upon the ground that he had departed from the state with intent to defraud his creditors. The attachment was levied on the same day on certain property in Yonkers. On the 23d day of April, 1887, an order for publication of the summons
p. 592was obtained and the publication was commenced and continued until the 17th of May, 1887, when the defendant voluntarily and all purposes appeared in the action and consented to a judgment in the action “without further delay or of further notice to me.” On the 17th of May, 1887, judgment was entered on this appearance and consent and the attached property sold. Frederick O. Pierce obtained an attachment for the same reason on the 9th of April, 1887, and commenced publication of the summons ■on the 21st of April, 1887, and was continued until the same was completed as required by law. An execution on the Fuller judgment was given to the sheriff: and on the 27th of April, 1887, he’ sold the attached property and at once the money was paid over to Fuller on his judgment. The Code in these cases requires a personal service of the summons within thirty days after an attachment is granted, or else that within that time service of the same by publication shall be commenced, the service must be made complete by the'continuance thereof. Code, 638. It was held in the case of
Catlin v.
Ricketts ( 91 N. Y., 668 ), under the words of this section that a voluntary appearance is equivalent to a personal service.
In the case of Blossom v. Estes ( 84 N. Y., 614 ), it was decided that a failure either to serve personally or commence a publication of the summons destroys the attachment. In the present case the publication was commenced within the thirty days and the general appearance was thirty more days after the attachment was obtained and while the publication was progressing. Under the spirit of the last case in the court of appeals ( 91 N. Y., 669 ), the appearance was good to save the attachment. A party by an appearance can waive the service by publication as well as a permanent service of the summons within thirty days and if the proceedings are progressing by publication, it cannot have been intended to take away the effect of section 424, Code. The appearance ought to be held to dispense with further publication for it would be idle to continue it. The object of it was service and that is accomplished without it.
The order should be reversed, with costs and disbursements, and the motion denied.
Pratt, J., concurs.