Opinion
June 28, 1949.
Appeal from Supreme Court, Rensselaer County.
The affidavit on which the order for service by publication was based showed respondent had deserted his family with intent to remain away permanently and that the police had searched for him in New York State and that he had not been found and could not be served in New York with due diligence. This was enough to give to the Judge authority to grant the order within one or more of the provisions of section 232-a of the Civil Practice Act. ( Tate v. Lapen, 213 App. Div. 334; Kennedy v. New York Life Ins. Trust Co., 101 N.Y. 487; Union Trust Co. v. Driggs, 62 App. Div. 213.) It is the judge, not the affiant who must be satisfied that the facts come within an applicable provision of the statute ( Evans v. Weinstein, 124 App. Div. 316). The notice as published contained the text required by rule 52 of the Rules of Civil Practice but did not state the object of the action or briefly describe the property, as required by the last paragraph of the rule in this kind of action. Therefore, notice was furnished, including reference to the place where defendant could find and read the complaint, which would give him all the omitted information. The defect was in form and was not jurisdictional. ( Loring v. Binney, 38 Hun 152, affd. 101 N.Y. 623; Close v. Calder Co., 139 App. Div. 175; McCully v. Heller, 66 How. Prac. 468; Denman v. McGuire, 101 N.Y. 161; Mishkind-Feinberg Realty Co. v. Sidorsky, 189 N.Y. 402.) These cases are distinguishable from the jurisdictional failure arising from an absence of notice, as Hollender v. Wallace ( 167 App. Div. 217) and Conklin v. Federal Trust Co. ( 176 App. Div. 572). Order reversed on the law and facts, with $10 costs and disbursements. Foster, P.J., Heffernan, Brewster, Santry and Bergan, JJ., concur.