114 N.Y.S. 436 | N.Y. App. Div. | 1908
The affidavit on which the order of service on the non-resident defendants was made was that one of the said defendants resides in Lehigh, state of Iowa, and the other in Victor, state of Colorado, naming them. These facts were certainly sufficient to enable the Judge to draw the conclusion that they could not be personally served in this state with due diligence. How could they % People as a rule stay where they reside. People living off in Iowa and Colorado do not often come to this state; most of them never do. Courts and Judges may base conclusions on reasonable or natural inferences. But fault is found that the affidavit draws the conclusion, for it concludes as follows: “ that the plaintiff will be unable with due diligence to make personal service of the summons in said action upon the said several defendants above named because of the absence of the said defendants ” (naming them) “ and each of them from the state of New York”, following the words of the Code (§ 439). But how, pray, does this matter ? This part of the affidavit was only verbiage. The Code provision requires that the affidavit state facts from which the conclusion may be drawn, not that it state the conclusion. It was not for the affidavit to state the conclusion at all, but the facts from which the Judge
The judgment should be affirmed.
Woodward, Hooker, Rich and Miller, JJ.3 concurred.
Judgment affirmed, with costs.