Brooklyn Trust Co. v. . Bulmer

49 N.Y. 84, 1872 N.Y. LEXIS 138

Opinion

Rapallo, J.

Personal service of the summons and com plaint can be made out of the State only when publication is ordered. (Code, § 135.) When so made, it is equivalent to publication and deposit in the post-office. (Id.) Section 137 declares that, in the cases mentioned in section 135, the service of the summons shall be deemed complete at the expira- . ,tion of the time prescribed by the order of publication. It is held, and we think correctly,, in .Tomlinson v. Van Vechten, (6 How., 199), and in Abrahams v. Mitchell (8 Abb. Pr., 123), that where personal service is thus -made opt of, the State, .such service is not complete until the time prescribed. for- the publication has expired. Section 137 requires the lapse of this time to render the.service complete.in all the cases mentioned in section 135. It- makes, no.exception where ..personal service is, pursuant to the same section, substituted for actual publication.

The order should.be affirmed with, costs.

All concur.

Order affirmed.