41 N.Y.S. 463 | N.Y. App. Div. | 1896
Section 438 of the Code of Civil Procedure authorizes the granting of an order of publication, among other cases-: “ 1. Where the defendant to be served, * * * being a natural person, is not a resident of the State. * * * 5. Where the complaint demands
Where suit is brought against a non-resident by substituted service, it must partake of the nature of an action in rem, or jurisdiction will not be acquired to render a valid judgment. (Pennoyer v. Neff, 95 U. S. 714.) In that case Hr. Justice Field observed : “ It is true that, in a strict sense, a proceeding m rem is one taken directly against property, and has for its object the disposition of the property, without reference to the title of individual claimants; but in a larger and more general sense the terms are applied to actions between parties, where the direct object is to reach and dispose of property owned by them, or of some interest therein. Such are cases commenced by attachment against the property of debtors, or instituted to partition real estate, foreclose a mortgage, or enforce a lien.” It will be seen that the learned justice mentions only attachment suits and such suits as would come within the purview of subdivision 5 of section 438 of our Code. We think that the plaintiff in the present action was entitled to an order of publication under this 5th subdivision of section 438.
The complaint, when scrutinized, will be seen to have two aspects. It seeks to obtain a judgment against the defendant for the amount claimed to be due by him to the firm of Horton & Chesley. In this aspect it is purely personal in its nature. But the demand for a receiver of the partnership effects, with power to sell, shows that
Regarding the plaintiff’s suit in this aspect, that is, as one brought to enlorce a lien upon the partnership assets in this State, it comes precisely within the provisions of subdivision 5 of section 438 of the Code, and there can be no doubt that it is an action of the class which may be begun through service by publication. Specific property within the limits and jurisdiction of this State is sought to be subjected to a lien in favor of the plaintiff — one of the actions particularly mentioned in Pennoyer v. Neff (supra).
But one further question remains to be considered. The plaintiff demands a greater measure of relief than could be given him in an action begun without personal service of the summons, Is it essential to the granting of the order that the action, in all its aspects, be maintained here % "We think not. Section 439 of the Code requires the complaint to show “ a sufficient cause of action against the defendant to be served.” This the present complaint does.. It demands a measure of relief which the court is competent to grant, together with more which it is not. It frequently happens, however, especially in equity suits, that more is asked than the. facts proved permit the court to grant. This, however, is no obstacle to the rendering of the decree to which the plaintiff is entitled.' The plaintiff, if he proves his cáse, is entitled, seetmdum allegata et probata, to the application of the Hew York assets to the payment of his claim, and this right is “ a sufficient cause of action against the defendant ” within the meaning of section 439, Porter Land & Water Company v. Baskin (43 Fed. Rep. 323), decided under the California Civil Code, is an authority on this point. The defendant denies that there are Hew York assets, but this is not the time to try that issue. It is the complaint (§ 439) which must determine
The order appealed from should he reversed, with ten dollars costs and disbursements, and the order of publication reinstated, with ten dollars costs.
Rumsey, Patterson and Ingraham, J J., concurred.
Order reversed, with ten dollars costs and disbursements, and order of publication reinstated, with ten dollars costs.