Belmont v. . Cornen

82 N.Y. 256, 1880 N.Y. LEXIS 350

• Court: New York Court of Appeals
• Decided: October 5, 1880
• Status: Published

Opinion

Rapallo, J.

To authorize a judge to grant an order for the service of a summons on an absent defendant by publication in a case like the present one, the 135th section of the Code, which was in force when the order now under review was made, required that it should appear by affidavit to the satisfaction of the cowrt or judge, that the defendant could not, after due diligence, be found within the State.

The court or judge making the order of publication was, by this enactment, empowered to pass upon the sufficiency of the evidence that due diligence had been used to find the defendant within the State and that he could hot there be found.

If the affidavit presented to a judge to whom application was made for such an order, contained allegations tending to show that efforts had been made to find the defendant within the State and that he was not there, the judge was, by the section before referred to, vested with jurisdiction to pass upon the question of the sufficiency of the proof of those facts, and, if the proof satisfied him, neither his order nor the judgment based thereon could be impeached collaterally.

The determination of the appeal now before us depends upon the simple question whether the affidavits upon which the order of publication was granted were sufficient to enable the judge to intelligently be satisfied, that after due diligence the defendant, could not be found within the State.

On the question of diligence, the affidavits showed that the plaintiff placed in the hands of the sheriff of the city and county of Hew York, the proper officer, a summons in the action, and received from him an official return that he had used due diligence to find the defendants in his county but was unable to do so. The affidavit further showed that the plaintiff’s attorney had himself made inquiries to find the defendants, which resulted in information, from a reliable source, that they resided in another State. This fact is conceded. The affidavit, to say the least, showed that some effort was made to find the defendants and effect service upon them within the State, and that it was impracticable. The fanciful suggestion that the defendants might have been found transiently here is not sufficient to deprive the judge of jurisdiction to determine that the case was a proper one for service by publication. Heither can we sanction the criticism that the evidence of an effort to serve the defendants was insufficient because the summons was placed in the hands of the sheriff of the county of Hew York only, and that his certificate was merely that the defendants could not be found within that county. We think it would have been unreasonable to require that the plaintiff’s attorney should have issued a summons to the sheriff of every other county in the State. Such an extreme degree of diligence was not necessary to satisfy the judge, in view of the fact, not de nied, that they resided out of it. While great caution should be exercised in granting these orders, and parties should be treated liberally in opening judgments if injustice has been done, mere technical objections, like those now raised, should not be held to invalidate a judgment upon which the title to real estate depends.

The order should be affirmed.

All concur, except Folger, Ch. J., and Danfobth, J., dissenting ; the latter reading opinion for reversal.

Order affirmed.