Phillips v. Winne — 47 N.Y. St. Rep. 412

Majority

p. 412

Frederick A. Phillips, Jr., Resp’t, v. Maria N. Winne, Impl’d, App’lt.

(Supreme Court, General Term, Second Department,

Filed July 22, 1892.)

Headnote

Service—-Substituted.

Proof that the sheriff had made repeated efforts to serve the summons and had been unable to find the defendant; that plaintiff’s attorney on calling at her residence was informed that she had gone away to be gone for some time, and was refused information as to where she had gone or when she would return, is sufficient to authorize an order for substituted service.

Appeal from order denying motion to set aside an order for substituted service of summons.

Mooney & Shipman, for app’lt; Frank H. Gray, for resp’t.

—This action was brought to foreclose a mortgage: The defendant Winne resides at 226 First street, Albany, N. Y. An order for substituted service upon her of the summons was made and an order was granted at special term denying a motion to set aside the order for substituted service. The-order was properly granted under § 435, Code of Civil Procedure. The defendant Winne resided within the state. The return of the sheriff shows that he repeatedly called at her residence and was not able to find her; that he was told on each occasion that she was not in, and that he was not able to serve the summons-personally upon her. The plaintiff's attorney then went with the summons to her residence, and was unable to find the defendant. That the person who answered his call stated that the defendant, had been to Schenectady; had returned and stayed a few hours, and had again gone away to be gone for some time; that she did not care to say where she had gone, or when she would return; that the defendant had received all mail matter previously sent to

p. 413

her, and would receive such matter thereafter. The facts fully established that a proper and diligent effort had been made to serve the summons upon defendant, and that the place of her sojourn could not be ascertained.

The order should therefore be affirmed, with costs and disbursements.

D nor an, J., concurs; Cullen, J., not sitting.