Hyatt v. Wagenright

New York Supreme Court

Hyatt v. Wagenright

18 How. Pr. 248, 1859 N.Y. Misc. LEXIS 329

CourtNew York Supreme Court

DecidedDecember 10, 1859

StatusPublished

Cited by3 cases

This text of 18 How. Pr. 248 (Hyatt v. Wagenright) 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

Hyatt v. Wagenright, 18 How. Pr. 248, 1859 N.Y. Misc. LEXIS 329 (N.Y. Super. Ct. 1859).

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Opinion

Balcón, Justice.

The Code requires that the order for the publication of the summons “ must direct a copy of the sum[249]*249mons and complaint to be forthwith deposited in the post-office,, directed to the person, to be served at his place of residence, unless it appear that such residence is neither known to the party making the application, nor can with reasonable diligence be ascertained by him." (§ 135, sub. 5.) The affidavits in this case do not show the residence of the defendant, or that it is neither knoion to the plaintiff, nor can with reasonable diligence be ascertained by him. Which facts they must show before I can grant the order applied for. The order presented is printed; but it is defective, as many that have been printed are. It states that a copy of the summons and complaint be deposited in the post-office, addressed to the defendant, and that is all. It should read that a copy be forthwith deposited, &c., for that is the language of the Code (§ 135, sub. 5); and it should also state that it be directed to the defendant, at his residence, naming it, if it is known.

For the foregoing reasons, I must return the papers in this case to the plaintiff’s attorney, without granting the order applied for.

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Balcón, Justice.

The Code requires that the order for the publication of the summons “ must direct a copy of the sum[249]*249mons and complaint to be forthwith deposited in the post-office,, directed to the person, to be served at his place of residence, unless it appear that such residence is neither known to the party making the application, nor can with reasonable diligence be ascertained by him." (§ 135, sub. 5.) The affidavits in this case do not show the residence of the defendant, or that it is neither knoion to the plaintiff, nor can with reasonable diligence be ascertained by him. Which facts they must show before I can grant the order applied for. The order presented is printed; but it is defective, as many that have been printed are. It states that a copy of the summons and complaint be deposited in the post-office, addressed to the defendant, and that is all. It should read that a copy be forthwith deposited, &c., for that is the language of the Code (§ 135, sub. 5); and it should also state that it be directed to the defendant, at his residence, naming it, if it is known.

For the foregoing reasons, I must return the papers in this case to the plaintiff’s attorney, without granting the order applied for.

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Bluebook (online)

18 How. Pr. 248, 1859 N.Y. Misc. LEXIS 329, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hyatt-v-wagenright-nysupct-1859.

Opinion

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