Opinion
January, 1901.
William B. Ewing, for demurrer.
Reeves, Todd Swain, for defendants McGibbon, opposed.
The question of title raised by the answer before me turns upon the sufficiency of the affidavit to support the order of publication, under which it was sought to obtain jurisdiction of a certain defendant in a foreclosure action instituted in the year 1860.
This affidavit states simply that the defendant "cannot after due diligence be found within this state" and "that his residence is unknown to this deponent, nor can the same after reasonable diligence be ascertained by him, this deponent", the words used being practically in the language of the statute applicable at the time (Code Pro., § 135), which required that these two propositions should be supported "by affidavit to the satisfaction of the court" (or judge), the first being essential to the order itself, and the second to that part of it which dispensed with the mailing of the summons.
The point in dispute is whether the averment that "due diligence" had been used could suffice to prove the fact so far as to give the court jurisdiction to act upon the affidavit, the rule being that the order of publication is proof against collateral attack where the affidavit could have tended to support the facts called for by the statute. Belmont v. Cornen, 82 N.Y. 256; Orr v. Currie, 14 Misc. 74.
The allegation that the defendant cannot be found after due diligence may be taken as the assertion of a fact, sufficient to support a finding of that fact for the purposes of an order of publication. Kennedy v. N.Y., L.I. T. Co., 101 N.Y. 487; Jerome v. Flagg, 48 Hun, 351.
It is true that in these cases there was an additional allegation of nonresidence, the application having been made upon that very ground (Code Pro., § 135, subd. 3), and the statement as to "due diligence" was treated as somewhat fortified by the fact of the party's nonresidence, while in the case before me, the order having been made under subdivision 4 of section 135, no allegation of nonresidence was required (Barnard v. Heydrick, 2 Abb. [N.S.] 47), and there appears only the statement of "due diligence."
Inability to discover the party by the exercise of due diligence, is, however, wholly distinct from the fact of his non-residence, and proof of the latter is insufficient to establish the former (Bixby v. Smith, 3 Hun, 60); therefore, in a case depending simply upon the question of due diligence, I think the effect given to this form of allegation in the Kennedy case must be taken as sufficiently strong to support the order, and, for this purpose, the further statement that the defendant's residence was unknown and could not be ascertained "after reasonable diligence", would also appear to be a sufficient statement of fact.
There appears to be no merit in the contention that the affidavit should have been made by the plaintiff, rather than by the attorney. The statute certainly did not exclude the attorney from the class of persons who might make the necessary averments, and, as appears from the reported cases, the settled practice has been to receive the attorney's affidavit as sufficient for the purposes of such an application.
Demurrer sustained, with costs; leave to amend on usual terms.