108 N.Y.S. 753 | N.Y. App. Div. | 1908
Lead Opinion
The defendant appeals from a judgment awarding plaintiff the deposit paid upon a contract for the sale of real estate, with damages. The sole defect in defendant’s title upon which the plaintiff claims the right to rescind, is that Clara F. Mye, a former owner of the premises. agreed to be sold, was not served with the summons and complaint in a foreclosure action in 1897,- and that the court did not acquire jurisdiction over her in that action. The proof shows that service upon Mrs. Mye was attempted to be made by publication, and the particular point of the objection to the title is that the affidavit upon which the order of publication was granted was insufficient. That affidavit was made by a clerk in the office of the attorneys who' acted for plaintiff in the foreclosure action. He swears that a summons was issued and placed in his hands for service, and proceeds as follows: “ Taking with me a copy of the summons and complaint I went to the office of Ware '& Gibbs at 451 Columbus Avenue, Mew York, and was informed by Mr, Ware personally that he was the agent for the defendant • Mye in Mew York. " I then told said Ware that I wished to serve said defendant Mye, and was informed by said Ware in substance that said Mye is nota resident of the State of Mew York, but resides at 15 Iileist St., Berlin, Germany, and is now without the. United States. He told me that his last communication with her had been by letter to her addressed to 15 Kleist St., Berlin, Germany, as her post office address. I know of no other place where I could inquire about said Mye as I have nothing to guide me, but the fact that the name of Ware & Gibbs appears on a rental sign hanging on said property.”
When analyzed this affidavit shows: (1) That a rental sign was
The respondent criticizes the affidavit because it contains no averment of the affiant’s belief' that. Mrs. Eye was a non-resident, and no statement that “plaintiff has been or' will, be unable with due diligence to serve the defendant personally ” within the State. The Code of Civil Procedure (§§ 438, 439) authorizes an order for service by publication, where it appears by .affidavit that the plaintiff has been or will be unable, with due diligence, to make personal serv-. ice of the summons. What is required is not that the affiant, but the judge, shall be satisfied that the defendant is a non-resident and that personal service cannot be made even with due diligence. In Belmont v. Cornen (82 N. Y. 256)-the court said: “If the'affidavit presented to a judge to whom, application was made for such an order contained allegations tending to show that efforts had been made to .find the defendant within .the State and that he' was not. there, the judge was, by' tlie section
In the recent case of Kennedy v. Lamb (182 N. Y. 228) the affidavit shoAved that a number of defendants resided out of the State, and contained the allegation deemed so important by the ; respondent that “the plaintiff will be unable with due diligence to
The judgment should be reversed and a new trial granted, with costs to appellant to abide the event.
■ Pattekson, P. J., McLaughlin and Claeke, JJ.,- concurred; Laughlin, J., dissented. ..
See Code Proc. § 135; revised in Code Civ. Proc. §§ 438, 439.—[Rep.
Dissenting Opinion
• I am of opinion that the affidavit upon. which the order for service by publication was granted was insufficientto give the court-jurisdiction. Sufficient facts were not shown upon which to predicate a judgment that due diligence had been used and that the defendant could not be found within the- jurisdiction of the court. It did not appear that the summons had'been issued to the sheriff with directions to serve it and that it had been returned with a certificate that the defendant could not be, found, nor did it even appear that the directory had been consulted to ascertain whether or not the defendant resided in the city: It appears that there was
a house on the premis.es, but it is not shown that any attempt was made to obtain any information there concerning her whereabouts. It appears merely that the clerk of the attorney for the plaintiff was of opinion that he knew of no source to . obtain information concerning her whereabouts except by applying tc> real estate agents who apparently had a sign on the premises; and jurisdiction is sought to be sustained upon the unverified declarations of one of these agents. Even the agency of the real estate agents rests on the declarations of one of the members of the firm and on the.fact that they had a sign upon the premises. It was not shown that the plaintiff or his attorneys were without knowledge .as to the residence or. whereabouts of the defendant. I think that the foundation -for the service by publication was not as well laid as in Empire City Savings Bank v. Silleck (98 App. Div. 139; affd., 180 N. Y. 541) where it was held that the court did not acquire .jurisdiction. I am also, of;the opinion that the proof does not come up to-the/requirements.-of the rule prescribed in Kennedy v. Lamb (182 N. Y. 228), : It" was-not shown by competent evidence that :the, defendant .was," a n On-resident, and there was no competent,,ev idénée. that she could riot by
I, therefore, vote for the affirmance of the judgment.
Judgment reversed, new trial ordered, costs to appellant to abide event.