Ludden v. Degener

Full title: JULIUS E. LUDDEN, Respondent, v . FREDERICK L. DEGENER, Appellant

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Feb 1, 1897

14 App. Div. 397 (N.Y. App. Div. 1897)

43 N.Y.S. 908

Opinion

February Term, 1897.

Benjamin Tuska, for the appellant.

Hector M. Hitchings, for the respondent.

WILLIAMS, J.:

We think there was a sufficient affidavit to authorize the granting of the order for the publication of the summons. The service of the summons and complaint, however, was not properly made, because a copy of the order for publication was not served therewith, as required by the order made under section 440 of the Code of Civil Procedure. The language of this section of the Code is very clear, and the requirement that a copy of the order be served, when personal service is made without the State, cannot be disregarded, and the service still be deemed sufficient to give jurisdiction of the defendant.

Section 443 has no reference to the service of a copy of the order and in no way dispenses with the requirement of section 440. Section 443 relates merely to the form of the notice to be served with the summons in case personal service is made without the State instead of by publication.

It has been held in this department that the order under section 440 is invalid when it omits the provision requiring a copy of the order to be served with the summons and complaint when service is made without the State. ( McCool v. Boller, 14 Hun, 73; Johenning v. Johenning, 1 Civ. Proc. Rep. 145.) Certainly, if such omission renders the order invalid, the failure to comply with such requirement, when contained in the order, would render the service insufficient.

The order, so far as it denied the motion to vacate the order for publication, should be affirmed, and so far as it denied the motion to set aside the service of the summons and complaint should be reversed, and the motion to set aside granted, without costs of this appeal or in the court below.

VAN BRUNT, P.J., BARRETT, RUMSEY and PATTERSON, JJ., concurred.

Order, so far as it denied motion to vacate order for publication, affirmed, and so far as it denied motion to set aside service of summons and complaint reversed, and motion to set aside granted, without costs of this appeal or in the court below.