55 How. Pr. 418 | N.Y. Sup. Ct. | 1878
On the 4th day of September, 1877, on what was deemed “ satisfatory proof ” as required by section 435 of the Code, an order was made by me for substituted service of the summons in the above entitled action on the defendant therein.
A previous motion to me by defendant to vacate such order was denied upon the ground, that as the order for substituted service grants “ a provisional remedy,” section 772 provided it could only be vacated by motion to the court (See 54 How., 97). An appeal was taken from the order refusing to vacate the order of substituted service to the general term of this court, which has decided that the judge, who made the original order for substituted service has power to set aside the same (see 13 Hun, 579), and the motion for that object is now renewed before me upon the same papers upon which it was first heard and refused. An examination of the matter upon the merits now becomes necessary.
By section 435 an order for substituted service of a summons “ upon a defendant residing within this state may be made by the court or a judge thereof, or the county judge of the county where the action is triable, upon satisfactory proof, by the affidavit of a person, not a party to the action, or by the return of the sheriff of the county where the defendant resides, that proper and diligent effort has been made to serve the summons upon the defendant, and that the place of his
The order for substituted service was founded upon the affidavit of Charles H. Hallock, a party accustomed to serve legal papers, verified September 4, 1877, and establishing the following facts: First. That Hallock, on the evening of August 28, 1877, went to the dwelling of defendant’s father, Albert Gilbert, at No. 77 West Twelfth street in New York city, with whom she resided, and inquired of the servant, who answered the door call, for the defendant. The servant gave the information that the defendant was in, and asked the deponent his business. The reply was' “that he had a paper for her, s.aid defendant, which deponent was instructed to deliver to said defendant personally.” The servant went up stairs, and soon returned with Mr. and Mrs. Gilbert, the father and mother of the defendant. The interview which then took place, is thus detailed in the affidavit: “ Deponent then asked to see Mrs. McCarthy, as he, deponent, had a paper for her, which he was directed to deliver to her personally. The said. Gilbert then said he was the father of defendant, and that she could not be seen, and that all communications or papers must go through him. The said Gilbert then asked deponent if he was from Syracuse, and deponent told him he was not. He then asked deponent if he was acquainted with Mr. McCarthy, the plaintiff herein, and deponent told him he was not, and thereupon deponent left said house.” Second. That Hallock went to the house _ again on the 25th August, 1877, and inquired for the defendant. He was told she was in, and the servant showed him into the sitting room, and the mother, from up stairs, asked what he wanted. The answer was, “ he wanted to see the defendant, and that he had a paper for her.” The mother replied, “that defendant was sick, and could not be seen.” Hallock rejoined, “ it was very strange, as he was informed she was out on the street the day before, on the twenty-third
It is said that all the attempts, which had been made to serve the summons, were prior to the 1st of September, 1877, and, as the new Code took effect on that day, and not before, a case was not made out for the order. It is true that statutes are to have a prospective, and not a retrospective operation, unless otherwise declared, but this principle, as the provision of the .Code is simply remedial, impairing no vested and existing rights, is inapplicable (See note to page 164 of Potter’s Dwarris on Statutes, citing 1 Kent’s Com., 455). Nothing in the language of the section, or in the policy of the law, requires it to be narrowed as counsel claim. The right to make an order of substituted service upon a certain kind of proof, existed for the first time on the first day of September, and, as the law conferring it neither gives or takes away a right of action, but simply creates and gives from that time a new mode of serving process, there is no reason why full effect should not be given to its words, which permit an order for the new mode of service to be granted, on proof “ that proper and diligent effort has been made to serve the summons upon the defendant,” and “ that he amoids service, so that personal service cannot be made.” These facts must exist at the time of the application, as the language plainly imports, and nothing in the words imply that the avoiding of the service must have occurred after a certain date.
It is also claimed that the proof was insufficient, because
Upon the present motion, the defendant also claims that she has conclusively shown by her own affidavit, those of her father and mother, and the servant, Margaret Murphy, that there had been no attempt to avoid the service of any summons ; that Hallock only claimed that he had a letter to deliver, and that “ publicly and without any disguise, she went upon the streets for the purpose of taking exercise (in company with her mother) nearly, if not quite every day, from the thirty-first of July last, to the second of September, inst., when she went to Hew Jersey.” Before alluding to the affidavits in reply, let us look, for a moment, at the admissions of these paper’s.
The defendant was well enough to walk daily in the public streets, and yet her parents were unwilling to have a simple “ letter ” delivered to her personally; bold enough to walk such streets daily when only accompanied by her mother, and yet afraid to admit the bearer of a letter to her presence, in her father’s own house, in presence of both parents, because she “verily believed that said person was sent by her husband either to do her some bodily injury or to entrap her in some way into his power.” The refusal to let Hallock see the defendant, to say the least, is not naturally accounted for, but let us look at some other facts proved on this motion by the plaintiff.
Mr. Lauren Bedfield, an attorney at law, went to see the defendant on the afternoon of August 23, 1877, and told the servant his errand was with the defendant personally in regard to the matters with her husband. On being informed she was out shopping with her mother, he left word he would call that evening, but did not, sending Hallock. When Hallock, therefore, called that evening, it is safe to assume that the paper or letter which he wished personally to deliver, the parent’s knew was concerning the husband’s business.
The defendant lastly objects, that the summons, which was attempted to be served during August, was not the identical paper served under the order, and, consequently, if there was any attempt to evade the service of a process, it was not that one which was served. This objection is founded more upon the literal letter of an enactment, than upon its spirit and intent. The plain object of the Code was to give a remedy to a party desirous to bring a suit, which, without it, he could not do, because the party evaded the service of the summons. When the attempts to serve the paper were made, it was in the form prescribed by the old Code, which was about to give place to a new one. In the interview of September 1, 1877,
My conclusion is, that the motion to vacate the order of substituted service should be denied.