Seiler v. Wilson — 7 N.Y. St. Rep. 254

Majority

p. 254

Bernard Seiler, App’lt, v. Henrietta W. Wilson, Resp’t.

(Supreme Court, General Term, First Department,

Filed March 3, 1887.)

Headnote

1. Summons—Service of, by publication—Sufficiency of affidavits.

The affidavits, upon which an order for publication was based, will be sufficient if they show diligent search, inability to find the person and make service, and that the persons are non-residents on information and belief, although the sources of the information are not stated.

2. Same—Code Civ. Pro., § 135.

Section 135 of the Code of Civil Procedure, authorizes the order to be made by the court or judge.

Appeal from a judgment entered upon a verdict directed for the defendant, and from an order denying a new trial upon the minutes.

Joseph E. Newburger, for app’lt; Alexander & Ash, for resp’t.

The plaintiff brought this action to recover a deposit of $100 received by the defendant as part of the purchase money upon an agreement to convey certain premises, and for expenses incurred in examining the title of said premises; the title tendered being alleged to be bad.

A verdict upon the trial was directed for the. defendant to which direction exception was duly taken.

The defect claimed to render the title of the premises in question1 unmarketable was in an affidavit and order of publication made in May, 1860, by which the court was claimed to have obtained jurisdiction of certain necessary defendants in a foreclosure suit.

The affidavit states that the affiant had in good faith made diligent search and inquiry for the said defendants,

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naming them, but that they could not be found within this state, and that the affiant had been unable to make service of the summons upon either of them.

The affidavit further stated that the summons had been issued to the sheriff, and he had returned that said defendants could not be found, and that as affiant was informed and believes the said defendants were non-residents of and giving their places of residence.

In the order the court certified that it appeared to the satisfaction of the court that the said defendants could not either of them after due diligence be found in this state and ordered a service by publication.

This order is claimed to have been made without jurisdiction because the affidavit did not show what effort was made to serve the papers, the source of information, and why the person who gave the information has not made the necessary affidavits, and because the affidavit as to the residence of the defendants served under the order was upon information and belief.

Several authorities are cited to support the objections, but none seem to be applicable.

In the case of Carleton v. Carleton ( 85 N. Y., 313 ), a • motion was made to set aside the service. The affidavit contained only an allegation of non-residence and the court held that such an allegation did not tend to establish that the defendant could not after “ due diligence be found within this state.”

In Lockwood v. Brantley ( 31 Hun, 155 ), a motion was made to set aside service, the only allegation in the affidavit being that the defendant was a non-resident and that the sheriff was informed by one Sterling that the defendant was there a day or two before making the affidavit, which motion was denied.

The question in Easterbrook v. Easterbrook ( 64 Barb., 421 ), arose upon a similar application and all that was decided was that a certificate of the sheriff alone is not sufficient.

In Bixby v. Smith ( 3 Hun, 60 ), is recognized a distinction between cases where an order of publication is attacked collaterally and where it is sought to be set aside directly.

The order in that case was attacked collaterally and held invalid because the only allegation was that of non-residence.

There are numerous cases where affidavits no stronger than the one in the case at bar had been held to confer jurisdiction when attacked collaterally, of which it is only necessary to cite one. Kennedy v. The N. Y. Life Ins. and Trust Co., 101 N. Y., 487 .

No authority has been cited showing that the allegation

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of non-residence although upon information and belief did not confer jurisdiction upon the court.

It perhaps would have been more satisfactory to have had a fuller allegation upon this point, but nevertheless the court acquired jurisdiction.

In the case of Belmont v. Cornen ( 82 N. Y., 256 ), the affidavit of non-residence was upon information and belief and the order was upheld, even when directly attacked. It is true that the sources of information were stated but no reason given for non-production of affidavit of informant.

These objections are not therefore well taken.

The order was not defective because it was a court order and not made by a judge, as section 135 of the Code of Procedure under which this application was made, authorized the order to be made by the court or judge.

It is not necessary to discuss the question as to whether the court erred in admitting the stipulation as to adverse possession or not, since we have come to the conclusion that no defect in the title was shown and that the direction of a verdict was correct, entirely independent of the question of adverse possession.

The judgment and order appealed from must be affirmed.

Lawrence and Potter, JJ., concur.