Jerome v. Flagg

1 N.Y.S. 101, 15 N.Y. St. Rep. 827, 48 Hun 351, 1888 N.Y. Misc. LEXIS 1205

• Court: New York Supreme Court
• Decided: May 14, 1888
• Status: Published

Opinion

Pratt, J.

This is an appeal from an order denying a motion to vacate an order of publication of summons based upon the ground that the affidavit was insufficient. The proof was clear and conclusive that the defendant was a. resident of Denver, and absolutely located there, and hence no amount" of diligence would avail to effect a personal service in this state. The case of Kennedy v. Trust Co., 101 N. Y. 487, 5 N. E. Rep. 774, is decisive of the question raised here. The expression in the affidavit of plaintiff’s attorney, “that said defendant cannot with due diligence be served personally within the state, ” must be regarded, not solely as a conclusion of law, but as a statement of fact tending to show that due diligence had been used. Such was the construction put upon a like statement in the Kennedy Case, supra. There is no other point that requires discussion. The order must be affirmed, with costs.