Tuller v. . Beck

15 N.E. 396, 108 N.Y. 355, 20 Abb. N. Cas. 425, 13 N.Y. St. Rep. 647, 63 Sickels 355, 1888 N.Y. LEXIS 590

• Court: New York Court of Appeals
• Decided: February 10, 1888
• Status: Published

Opinion

Finch, J.

We are of opinion that the attachment assailed by the subsequent lienors was not void because the publication of the smnmons, regularly ordered and commenced, was suspended before its completion by reason of the appearance of the defendant in the action, waiving further publication and consenting to the entry of judgment against him. The object of the publication is by a substituted service to bring the defendant into court, and the language of the Code (§ 638) that “if publication has,been or is thereafter commenced, the service must be made complete by the continuance thereof,” means simply that, when the service relied upon as the ground of jurisdiction is publication, that must be, not partial and merely commenced, but continued and entirely complete. In our judgment the provision does not forbid or prevent the equivalent personal service permitted by section 424. Substantially this was decided in Catlin v. Ricketts (91 N. Y. 668), and we are unwilling to hold that the fact of defendant’s appearance after the thirty days, while publication was running commenced before the thirty days, should compel a different decision. While the strict letter of the section might admit of such construction, we do not think that is its true meaning or intent.

The order should be affirmed, with costs.

All concur.

Order affirmed.