Hess v. Felt

60 Misc. 541, 112 N.Y.S. 470

• Court: New York Supreme Court
• Decided: October 15, 1908
• Status: Published

Opinion

Giegerich, J.

The mere fact that the plaintiffs knew the defendant was somewhere in Canada, the efforts of the plaintiffs to find out in what place therein being unavailing, is not enough to warrant a vacation of the order for substituted service obtained under section 435 of the Code of Civil Procedure upon the ground that the defendant was without the State and that the place of his sojourn could not be ascertained. It is a fair inference from the moving papers that the family and business representatives of the defendant purposely and repeatedly withheld from the plaintiffs information of the defendant’s whereabouts in Canada. Under such circumstances it cannot be said that the place of the defendant’s sojourn has been ascertained and that the remedy provided in section 435 should be denied. Place of sojourn means a definite locality and not an entire country. Another ground on which it is sought to set aside the order is that it was not obtained until more than the sixty days prescribed by section 1670 of the Code of Civil Procedure had elapsed after the filing of the Us pendens. Such tardiness in procuring the order might affect the lis pendens, but not the jurisdiction. Brandow v. Vroman, 22 Misc. Rep. 370; Cohen v. Biber, 123 App. Div. 528, 530.

Motion denied, with ten dollars costs.