Fisk v. Bennett — 53 N.Y. St. Rep. 309

Majority

p. 309

Henrietta Fisk, Resp’t, v. James Gordon Bennett, App’lt.

(Supreme Court, General Term, First Department,

Filed May 12, 1893.)

Headnote

Service—Substituted.

A direction in an order for substituted service that the service be made on defendant at a place other than that of his residence is a fatal error.

Appeal from order denying motion to vacate order for substituted service.

John Townshend, for app’lt; B. C. Chetwood, for resp’t.

Section 435 of the Code of Civil Procedure provides: “Where a summons is issued in any court of record, an order for the service thereof upon a defendant residing within the state may be made by the court or a judge thereof * * * upon satisfactory proof * * * that proper and diligent effort has been made to serve the summons upon the defendant, and that the place of his sojourn cannot be ascertained, or, if he is within the state, that he avoids service so that personal service cannot be made.”

Section 436 provides that the order must direct that the service of the summons be made by leaving a copy thereof and of the order at the residence of the defendant, with a person of proper age, if, upon reasonable application, admittance can be obtained, and such a person found who will receive it, or, if admittance cannot be so obtained, nor such a person found, by affixing the same to the outer or other door of the defendant’s residence, and by depositing another copy thereof, properly inclosed in a post-paid wrapper, addressed to him at his place of residence, in the post-office at the place where he resides. The affidavits upon which the original order was made, and upon which the motion to vacate it was heard, show that the defendant is a resident of the state of Hew York, and is temporarily sojourning in the city of Paris, France. By the order it was directed “ that said summons be served by leaving a copy thereof and of this order at Ho. 220 Broadway, in the city of Hew York, with a person of proper age, and by depositing another copy of said summons and this order in the general post-office of the city of Hew York, properly inclosed in a post-paid wrapper addressed to said James Gordon Bennett, 220 Broadway, Hew York City.” It appears by the moving affidavit, which is

p. 310

not disputed, that No. 220 Broadway is not, and never has been, the residence of the defendant, but that his residence is, and for many years has been, at No. 28 West Twenty-First street in said city. This direction for service upon the defendant at a place other than that of his residence, as provided by the Code, was a fatal error, for which the order must be reversed.

The order is reversed, with ten dollars-costs and printing disbursements, and the motion granted, with ten dollars costs.

Van Brunt, P. J., Follett and Barrett, JJ., concur.