49 N.Y. 84 | NY | 1872
Personal service of the summons and complaint 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 expiration *86 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 out 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.