153 N.Y.S. 955 | N.Y. App. Term. | 1915
Plaintiff began an action by procuring a summons returnable the 19th day of February, 1915. Attached to the summons for the purpose of serving the same on defendant was a verified complaint alleging as a cause of action non-payment for goods sold and delivered to the defendant. Accompanying the summons and complaint was a warrant of attachment against the personal property of defendant. This attachment stated upon its face that it was issued upon the ground that the defendant was about to assign, dispose of, and secrete his property with intent to defraud his creditors. Upon the return day of the summons defendant made a special appearance by his attorney for the purpose of making a motion to set aside and vacate the attachment. The motion was denied and the defendant appeals to this court. The ground upon which defendant asks this court for a reversal of the judgment is that no proper and legal service was made upon the defendant of either the attachment or summons and complaint. The return of the marshal in reference to the service of the papers is as follows:
*599 “ City and County op New Yobk, ss:
“ By virtue of the within Warrant of Attachment, I have this 10th day of February 1915, attached and taken into my possession the following property as per inventory.
“ I further certify that on the above date I served a true copy of the Summons, Complaint, Affidavit, Undertaking, Inventory and Warrant on the within named defendant, Nathan Kalisch, by leaving a true copy at the last known place of business, No. 34 Norfolk Street, in the Borough of Manhattan, City of New York, with Jacob Drexler, a person of suitable age and discretion. I also deposited another true copy in the nearest post office enclosed in a sealed post paid wrapper directed to Nathan Kalisch, the within named defendant, at his last known place of business, 34 Norfolk Street, Manhattan, that such service was made for the reason that said defendant cannot .be found in said City to be served personally after due and diligent effort by me was made.
“ D. McG-onigle,
“ City Marshal.”
The return of the marshal fails to show a compliance with sections 77 and 78 of the Municipal Court Act in the following particulars; the marshal made no inventory thereof stating the estimated value of each item. The marshal failed to take the property into his “actual custody.” He also failed to deliver to the person “from whose possession” the property was taken a copy of the warrant of attachment and the affidavit upon which it was issued. Neither did the marshal’s return show a compliance with section 83 of the Municipal Court Act in serving the summons and other papers. This section requires a marshal to serve the summons, warrant of attachment and inventory
'So far as is disclosed by the papers these requirements have not been complied with. 'The authority for substituted service is statutory and must be complied with. Leaving the papers at the last known place of business is entirely different from leaving them at the last known residence.
There should also have been some evidence showing the efforts made by the marshal to ascertain whether the defendant could be found in New York city. The marshal’s return simply states a conclusion. The basic requirement for substituted service was not complied with even though it is shown by the papers that the defendant as matter of fact was a resident of the city.
The summons and warrant of attachment not having been properly served, the court upon the return day should not, in our opinion, have entered judgment against the defendant, and should have granted the motion to vacate the attachment.
Judgment reversed with costs,-complaint dismissed, with costs, and warrant of attachment vacated without prejudice to a new action.
Guy, J., concurs; Lehman, J., concurs in result.
Judgment reversed, with costs.
