Andrews v. Borland

New York Supreme Court

Andrews v. Borland

10 N.Y. St. Rep. 396

DecidedJuly 1, 1887

StatusPublished

This text of 10 N.Y. St. Rep. 396 (Andrews v. Borland) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Andrews v. Borland, 10 N.Y. St. Rep. 396 (N.Y. Super. Ct. 1887).

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Opinion

Barnard, P. J.

The affidavit for the order of publication was sufficient. The statement of the non-residence of John Mullarky is absolute. It is true that the sources of information are given, and show that the knowledge was acquired of a friend or relative, but residence can ordinarily be proved in no other way.

The essential fact is that the person to be served was a resident of the state of Oregon, and that fact is absolutely proven by affidavit so that the court could pass upon the application. The statements that the defendant in the foreclosure suit owned the property to be foreclosed, and that he could not, after due diligence and inquiry, be found within this state, are sufficiently stated, and taken together, the court had jurisdiction to make the order of publication. It appears the plaintiff’s attorney, in that action, made enquiry of a friend or relative, and was informed of his non-residence, and that he was not in the state.

The order appealed from seems to be well supported by the case of Kennedy v. The N. Y. Life Ins. and Trust Co. (101 N. Y., 487).

The order should be affirmed, with costs and disbursements.

Dykman and Pratt, JJ., concur.

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Barnard, P. J.

The affidavit for the order of publication was sufficient. The statement of the non-residence of John Mullarky is absolute. It is true that the sources of information are given, and show that the knowledge was acquired of a friend or relative, but residence can ordinarily be proved in no other way.

The essential fact is that the person to be served was a resident of the state of Oregon, and that fact is absolutely proven by affidavit so that the court could pass upon the application. The statements that the defendant in the foreclosure suit owned the property to be foreclosed, and that he could not, after due diligence and inquiry, be found within this state, are sufficiently stated, and taken together, the court had jurisdiction to make the order of publication. It appears the plaintiff’s attorney, in that action, made enquiry of a friend or relative, and was informed of his non-residence, and that he was not in the state.

The order appealed from seems to be well supported by the case of Kennedy v. The N. Y. Life Ins. and Trust Co. (101 N. Y., 487).

The order should be affirmed, with costs and disbursements.

Dykman and Pratt, JJ., concur.

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Bluebook (online)

10 N.Y. St. Rep. 396, Counsel Stack Legal Research, https://law.counselstack.com/opinion/andrews-v-borland-nysupct-1887.

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