131 Misc. 462 | N.Y. Sup. Ct. | 1928
This action was commenced March 1, 1926, by issuance of a summons accompanied by a verified complaint which, in effect, stated two causes of action for the recovery of a money judgment only on account of moneys of the plaintiff had and received by the defendant.
Service of the summons upon defendant was made by publication pursuant to an order of the county judge of Washington county granted March 2, 1926. Defendant made no appearance whatever in said action and on May 3, 1926, judgment in favor of the plaintiff and against defendant was entered in the Washington county clerk’s office in the sum of $3,222.23, pursuant to an order of this court made at Special Term at Glens Falls, N. Y., on said day, on plaintiff’s application for judgment by default. On March thirteenth following, an execution issued upon said judgment under which defendant’s title and interest in certain real property in Washington county was seized and, on July 14, 1926, sold to plaintiff, followed, after fifteen months, by a sheriff’s deed to plaintiff recorded in the Washington county clerk’s office about November 17, 1927.
The defendant now moves to vacate and set aside the aforesaid judgment, the order for the service of the summons by publication and the sheriff’s sale on execution, upon the jurisdictional grounds: (a) That no seizure of defendant’s said property within the State was made by warrant of attachment or otherwise until the sheriff’s levy by virtue of the execution issued upon the judgment; (b) that the moving affidavits upon which the order for the service of the summons on defendant by publication was based, were fatally defective in their recital of facts; (c) that the publication of the summons was not made pursuant to law.
It is, of course, well established that in an action for a money judgment only against a non-resident defendant seizure of the defendant’s property within the State by warrant of attachment is a prerequisite to the acquisition of jurisdiction, and that without such seizure no valid order for the service of the summons by publication may be made or judgment by default rendered on application to the court. (Civ. Prac. Act, § 232, subd. 8; Id. § 493; subd. 2; Dimmerling v. Andrews, 236 N. Y. 43; Rich v. St. John, 205 App. Div. 24.)
The moving papers here show further that, after separating from the plaintiff, her then husband, on or about May 1, 1925, during the following fall he procured an absolute divorce from her. It is, therefore, highly questionable whether, until after the marriage had been dissolved, it was possible for her to have effected a valid change of legal residence even if we assume an intent on her part so to do accompanied by requisite acts that otherwise would have effectuated it. (19 C. J. p. 414, § 33; McGown v. McGown, 18 Misc. 708; affd., 19 App. Div. 368; affd., 164 N. Y. 558.) In the few months that thereafter elapsed prior to the institution of this action and the
I am also unable to agree with the contention of defendant that the moving papers upon which the order for the service of the summons by publication was granted were so insufficient as to render the order void. In that connection defendant asserts a fatal insufficiency of statement of facts showing the impossibility of making personal service upon the exercise.of due diligence. In his. affidavit for the order of publication, plaintiff affirmed to the effect that the defendant while then his wife deserted him, left their home, ran away with another man on a designated day and subsequently wrote him stating she would never return and that search for her would be unsuccessful; and then followed the further inartificially phrased and irregularly expressed deposition to the effect that he had been unable to obtain any information as to her whereabouts after diligent inquiry therefor of all her relatives likely to possess such information. In my opinion those affirmations, considered in connection with the further matters set forth in said moving papers, were sufficient to validate the order.
The order of publication in question provided for the publication of the summons in two newspapers, one of which was designated in the order as the Herald, a newspaper published in the town of Kingsbury, county of Washington, N. Y. The proof shows this publication to have been made in a newspaper called “ The Hudson Falls Herald,” published at Hudson Falls which is in the said town of Kingsbury. Nothing is presented showing the existence of any newspaper published in said town by the name of Herald, and consequently I am obliged to hold that the discrepancy in these names was due wholly to an inadvertent misnomer of the paper thus intended in the order of publication and thus that it was a mere irregularity and mistake susceptible of later correction (Mishkind-Feinberg Realty Co. v. Sidorsky, 189 N. Y. 402), and accordingly does not vitiate the order or the subsequent proceedings had.
The proof shows that the publication of the summons in both newspapers began March fourth and terminated on April 8, 1926, having been published in each of said papers once in each successive week for six weeks. Under our present practice this was sufficient. (Brooks v. Brooks, 190 App. Div. 564.)
Motion denied, with costs. Submit order.