Summary
In Marrone v. Tesoriere (92 Misc. Rep. 602) the precise question was involved, and it was there held that so long as the person complied with the provision for publication, it mattered not that the order provided for service without the State. (Code Civ. Proc. § 443, subd. 2.)
Summary of this case from Banfield Co. v. HollenbeckOpinion
December, 1915.
Samuel F. Frank, for defendant.
Miller Williams, for plaintiff.
Under section 683 of the Code of Civil Procedure the new proof offered by the plaintiff tending to sustain the attachment was competent and that shows the presence of property in the state that may be or has been levied on under the attachment.
Since the papers do not definitely show where the contracts were made or where the breaches thereof took place which are the causes of action, and, as this court is a court of general jurisdiction, I am permitted to rely upon the presumption that the causes of action arose within the jurisdiction of the court. Furbush v. Nye, 17 A.D. 325, and Furbush v. Clarkson, id. 327.
Neither of these cases has ever been questioned and the first one mentioned has been frequently cited.
As the causes of action arose in this state the service of the summons by publication was authorized under all the authorities. Clarke v. Boreel, 21 Hun, 594, is the leading case upon the subject. That case is not disturbed by Bryan v. University Pub. Co., 112 N.Y. 382, as the prevailing opinion in that case shows (p. 388). Guffey v. Grand Trunk R. Co., 67 Misc. 553, the case upon which the defendant mainly relies, is distinguishable from the case at bar in three respects, (1) that was an action for tort and not on contract, (2) the cause of action there did not arise in this state, and (3) there appeared to be no property in this state subject to attachment. Everybody who is intelligent in the law knows that there can be no personal judgment against a non-resident based upon a summons served by publication or without the state unless he appears and subjects himself to the jurisdiction of the court. This action will be innocuous as to him or his property unless an attachment is levied herein upon the defendant's property, or he appears generally in the action.
The form of the order for the service of the summons is not void but is perfectly valid. A misconception of the law upon the subject seems to have been derived from a hasty reading of Godfree v. Godfree, 166 A.D. 694, which is easily distinguished from the case at bar for in that case, in that portion of the order providing for publication, the court directed the deposit of the papers in the post-office, to be made on or before "the third publication" instead of on or before "the first publication." There is no such trouble in the order under consideration. While this order is in the form used prior to the amendments of sections 438, 440, 441, 443 and 445 of the Code of Civil Procedure, made in 1914, the Godfree case does not condemn it. I may add that, with great respect for the court which decided the Godfree case, I believe the view of the law there taken is unsound. We have been taught in Matter of Field, 131 N.Y. 184, that the order to institute a proceeding or action in rem against a non-resident by what may be called for convenience publication of the summons or personal service thereof without the state might provide for service by both of the two methods in the alternative or by one of the methods to the exclusion of the other. We have also been taught that where the order attempted to provide for the service of the summons by the two methods in the alternative, but by reason of jurisdictional defects in one of the methods attempted to be authorized service could not be made by that method, that fact did not invalidate the order. The service might be made under the other method. Sabin v. Kendrick, 2 A.D. 96. While, of course, the Field case and the Sabin case were decided before the amendments of 1914, I think these authorities are clearly applicable to the Code as amended. It seems to me that too much stress was placed upon "words" and not "substance" in the Godfree case. What difference does it make that the introductory words of section 438 of the Code as amended in 1914 indicate that the notice of proceedings in rem to be given to non-residents, among others, is called "the service of a summons * * * by publication," if in fact with the order made pursuant to sections 439 and 440, the summons may be served personally without the state in accordance with subdivisions 1 and 2 of section 443, and the publication not used at all? None, it seems to me. What harm can possibly be done by putting into the order the alternative provision that, although a publication of the summons is provided for, personal service thereof may be made agreeably to subdivisions 1 and 2 of section 443? None, it seems to me.
I am not overlooking subdivisions 3, 4, 5 and 6 of section 443, providing for personal service of the summons without the state in certain cases without any order at all.
However, as I have pointed out before, the Godfree case is not an authority in favor of the defendant in this action.
It follows that the motion must be denied, but without costs.
Motion denied, without costs.