Forster v. Moore — 52 N.Y. St. Rep. 662

Majority

p. 662

Frederick P. Forster, Resp't, v. Charles E. Moore et al., App'lts.

(Supreme Court, General Term, First Department,

Filed April 14, 1893.)

Headnote

Service—Publication—Concealment to avoid service.

A mere inability to serve process at a particular time is not sufficient to justify an order of publication on the ground that defendant is keeping himself concealed with intent to avoid service of process; it is only where evidence is furnished showing such intent that the order should be granted.

Appeal from an order denying motion to vacate two orders, the first of which directed the service of the summons upon defendant by publication, and the second of which appointed James L. Mc-Neirny temporary receiver of the rents of Nos. 356-362 West One Hundred and Sixteenth street, in this city.

Robert J. Robeson, for app'lts; Henry A. Forster, for resp't.

If the order the services of the summons by publication was improperly granted, then the second . order appealed from, appointing a temporary receiver, must necessarily fall, because based upon the validity of the prior order. The single question presented is as to whether the affidavits contain sufficient evidence establishing the facts upon which to found an order of publication. The affidavits were directed towards showing that the defendants were keeping themselves concealed with intent to avoid service upon them of a summons. These affidavits state that on the 25th of February, 1893, two persons .attempted to obtain service,one in the morning, at nine o'clock, and the other at eleven o’clock of that day, and upon failure to obtain an entrance into the apartment occupied by the defendants, in which it would appear they then were, a statement was made that they were concealing themselves with intent to evade the ser vice of a summons. It may well be that such affidavits would be sufficient for substituted service under § 435 of the Code, which

p. 663

provides that where a defendant avoids service of a summons, •and cannot be served with due diligence, such an order may be granted. But for the purpose of obtaining an order of publication, which requires proof of intent, we think the mere failure to obtain admittance by two different persons on the same day to the apartments occupied by persons upon whom process is sought to be served hardly comes up to the requirements of the Code, of showing an intent on the part of such persons to conceal themselves.

In other words, a mere inability to serve process at a particular time is not sufficient to justify an order of publication against defendants, and it is only where evidence is furnished showing such intent that the order should be granted. We think that all that is here shown was mere inability to serve process; and, except the conclusions of the two persons who made the affidavits, there is no evidence which would have justified the court in concluding that the defendants were deliberately concealing themselves, with intent to avoid the service of a summons.

Although the merits of the action and the conduct of the defendants may be as claimed by the respondent, and sufficient facts were presented to confer jurisdiction upon the judge to act, still we think that, as the only point here is as to the weight to be ( given to the evidence presented by the affidavits, and having thereupon reached a conclusion contrary to that of the judge below, it follows that both orders must be reversed, with ten dollars costs and disbursements.

Van Brunt, P. J., and O'Brien, J., concur.