Jewitt v. Jewitt — 18 N.Y. St. Rep. 238

Majority

p. 238

Jewitt v. Jewitt.

(Supreme Court, Special Term, Albany County,

Filed September, 1888.)

Headnote

1. Summons—Service by publication—Requirements of—Code Civ. Pro.. §440.

In an action for divorce an order was obtained for "the service of the summons by publication, upon affidavits which did not show that the plaintiff could not, with reasonable diligence, ascertain a place where the defendant would probably receive matter transmitted through the post-office. Held, that the affidavit was defective on its face. Code Civ. Pro., §440.

2. Divorce—Action for—Place of trial—Code Civ. Pro., § 984.

Held, that such an action should be brought in the county in which one of the parties to the action resided at the commencement of the action.

3. Same—Grounds for setting aside order of reference and subsequent proceedings.

Held, that where, in such an action, the plaintiff, though having knowledge of the defendant’s place of residence, or at least where she would receive mail matter, when she obtained an order for the service of the summons by publication, intentionally kept her in ignorance of the action until after judgment, the order of reference and all matters subsequent thereto should be set aside.

Galen R. Hitt, for pl’ff; William North, for def’t.

There is no evidence whatever in the affidavits on which the order of publication was granted that the plaintiff could not with reasonable diligence ascertain a place where the defendant would probably receive matter transmitted the Code, § 440.

The defendant’s allegations in her moving affidavits that in 1887 the plaintiff was at Hartford and had frequent conversation with her there, and that he knew that she resided in Hartford; that he stayed with their daughter in Hartford, and had correspondence with her son there are not denied by plaintiff.

The order of publication was obtained in December, 1887, and served by publication that month.

In March, 1888, and till June, 1888, defendant was in West Troy, plaintiff’ s residence, and was at the same house where plaintiff lived. And although she thus met plaintiff frequently, she was not informed that this action had been commenced, and she never knew of its pendency till after the decree in August, 1888.

The plaintiff lived in Albany county, and the place of trial should have been there. Code, 984. It was placed in Saratoga county. The publication of the summons was in two Ballston papers.

The report of the referee does not mention the name of the person with whom the alleged adultery was committed at plaintiff’s house, and as to that alleged to be committed in Troy, only says, “a man by the name of Nichols.”

p. 239

I cannot doubt on these papers that the plaintiff knew where the defendant lived when he obtained the order, or at least where she would probably receive mail matter, and that he intended that she should know nothing of the action till after judgment. And his affidavit to obtain publication was plainly defective on its face.

The order of reference and all proceedings thereunder, the report of the referee and the judgment entered thereon are set aside, with $10 costs, and the defendant may come in and answer on demurrer within twenty days after service of a copy of the complaint on her attorney.