90 N.Y.S. 561 | N.Y. App. Div. | 1904
The ground upon which the purchaser asks to be relieved from his bid is, that a second mortgage upon the premises is not cut off by the judgment, owing to the fact that service upon the owner and holder thereof was made by publication, and that the affidavits upon which the order of publication was granted were insufficient to give the court jurisdiction. The order was applied for and made upon the theory that George Watson, the owner and holder of the second mortgage, resided at Hamilton, Ont., and that
It would probably be sufficient to show that Watson was a nonresident and resided in Hamilton, Ont., if that fact were averred by the affiant upon information and belief based upon the information set forth ; but, in the absence of such an averment, the mere declarations of third parties have no probative force. For aught that appears, the affiant may have known or had reason to believe from other information obtained that Watson did not reside in Hamilton, Ont., and may have known or had reason to believe that Watson was within the State or was coming to the State, or entered the State before the order was obtained many weeks later, so that j>ersonal service could have been made upon him. If the affidavit alleged the principal facts upon information and belief derived from the sources and based upon the grounds stated, and had shown that the summons had been issued to the sheriff and returned unserved by him, the proof of the non-residence and the inability to make personal service in the exercise of due diligence would sufficiently appear. (Howe Machine Co. v. Pettibone, 74 N. Y. 68; Belmont v. Comen, 82 id. 256.) Where the order is sought on the ground of non-residence there must be some competent evidence of non-residence and that plaintiff has been or will be unable, in the exer
It follows that the order should be reversed, with ten dollars costs and disbursements, and motion granted to the extent of relieving the purchaser from completing his bid and directing the return of the amount paid by him, together with any interest earned thereon, with ten dollars costs.
Yan Brunt, P. J., and Patterson, J., concurred ; O’Brien and Hatch, JJ., dissented.
Order reversed, with ten dollars costs and disbursements, and motion granted to the extent stated in opinion, with ten dollars costs.