9 How. Pr. 519 | N.Y. Sup. Ct. | 1854
The act of 1853 (Sess. Laws, 1853, p. 974)
Nor had the plaintiffs any occasion to resort to this extraordinary mode of service. If it be true, as was stated upon the argument, that the action is brought to foreclose a mortgage; the plaintiffs, upon showing that the defendant could not, after due diligence, be found within this state, might have had an order that service be made by publication in the manner prescribed by the 135th section of the Code. Whether the defendant was a resident or not, the case would have been within the 4th sub-division of that section.
It was insisted by the defendant’s counsel that the case was also within the third sub-division of the 135th section. But I am not prepared to say that the plaintiffs could have had an order for publication merely on the ground that the defendant was a non-resident. His family reside in this state, and the only evidence to show that the defendant himself was a nonresident is, the statement of his wife, that he was in Ohio and was not expected back this summer, except on a visit. It is true, that a man may have his domicil in this state, and yet not be a resident. To constitute such a man a non-resident, however, something more than a transient visit to some other state or country is required. He must have determined to make some place without the state his place of abode, at least temporarily. This is clearly the doctrine of the court in Frost agt. Brisbin, (19 Wend. 11; see also Haggart agt. Morgan, 1 Sel
But, it being an action to foreclose a mortgage, it is immaterial whether the defendant is a non-resident or not. If, after due diligence, the plaintiffs have been unable to procure personal service of process, they are entitled to an order allowing them to make service by publication. And, if this were not so, the act of 1853 has not made provision for such a case Before the substituted service provided by that act can be re - sorted to, it must be shown that the defendant cannot be found, either in or out of the state, or that he avoids or evades personal service.
This motion must, therefore, be granted with costs.