But the complaint does allege two causes of action, separable and separated. It is plain that one of them is a cause of action in personam and that no judgment can be had against this defendant on that cause of action, since there has been no personal service of process on him within the jurisdiction, nor has there been a general appearance by him. It does not necessarily follow, however, that the court, for that reason, lacks jurisdiction to decree to plaintiff a judgment in rem, for separation. It is not a sufficient ground for setting aside the service that "plaintiff demands a greater measure of relief than could be given him [her] in an action begun without personal service of the summons." ( Chesley v. Morton, 9 App. Div. 461, 464, see Holmes v. Camp, 219 N.Y. 359, 364.) Ordinarily it is enough, as against a motion to set aside service by publication or personally outside the State, that there be found in the complaint allegations which, if proven, would entitle plaintiff to a judgment in rem.
The argument is pressed that the res need not be here at the inception of the suit; if there is nothing here to-day, there may be something here to-morrow; an action at law will lie, it is said, to procure a judgment enforcible against any property that may be discovered in the future. This was not so before the statute ( Brown v. Brown; Field v. Gibson, supra), nor do I think it is so now. Such a construction would leave outstanding, as a difficulty still to be overcome, the point of constitutional power. If possession of the res is the foundation of jurisdiction, that possession must be acquired when jurisdiction is assumed ( Riverside D. River C. Mills v. Menefee, supra; Bryan v. University Pub. Co., 112 N.Y. 382; Paget v. Stevens, 143 N.Y. 172; Holmes v. Dell, 139 App. Div. 455, 461; Chesley v. Morton, 9 App. Div. 461). But I do not dwell upon the point of power, for if all its doubts and difficulties were dispelled, there would remain the point of purpose. The plaintiff's construction of the statute involves the scheme of legislation in a tangle of contradictions.
"In a suit to establish a trust in real estate, service may be had on a nonresident, though the bill also prays for an accounting and for other relief." To the same effect is Chesley v. Morton, 9 App. Div. 461, 41 N Y Supp. 463: "The complaint, when scrutinized, will be seen to have two aspects. It seeks to obtain a judgment against the defendant for the amount claimed to be due by him to the firm of Morton Chesley.
The deposit with the defendant bank to the credit of the partner sued should be held to be specific personal property within the jurisdiction of the court, under sections 232 and 235 of the Civil Practice Act. To the extent that such funds be established to be partnership property or assets, the court can determine the rights and interests of the partners as such. Although no personal judgment can be given against the defendant Kruh, nevertheless a judgment, if obtained, may be enforced to the extent of partnership funds traced at the trial as on deposit with the defendant bank. I think Chesley v. Morton ( 9 App. Div. 461) is here controlling, and requires a reversal of the orders here appealed from. Injunction may be resorted to in order to reach property which cannot be attached at law. ( Pennington v. Fourth Nat. Bank, 243 U.S. 269.)
In Helme v. Buckelew ( 229 N.Y. 363, 371) the court said: "The argument is pressed that the res need not be here at the inception of the suit; if there is nothing here to-day, there may be something here to-morrow; an action at law will lie, it is said, to procure a judgment enforcible against any property that may be discovered in the future. * * * Such a construction would leave outstanding, as a difficulty still to be overcome, the point of constitutional power. If possession of the res is the foundation of jurisdiction, that possession must be acquired when jurisdiction is assumed [ Riverside D. River C. Mills v. Menefee, 237 U.S. 189; Bryan v. University Pub. Co., 112 N.Y. 382; Paget v. Stevens, 143 N.Y. 172; Holmes v. Bell, 139 App. Div. 455, 461; Chesley v. Morton, 9 App. Div. 461.]"
(See 103 Misc. Rep. 415.) Assuming, but not holding, that the service of a summons is such an assertion of jurisdiction as would subject personal property to the jurisdiction of the court so that a judgment rendered would be operative upon it without the court having in some manner by attachment or otherwise asserted its jurisdiction over the property, it is clear that the property must have been within the State at the time the court made its assertion of jurisdiction over the non-resident defendant and that was at the time that the order for substituted service of the summons was made. ( Chesley v. Morton, 9 App. Div. 461; Freeman v. Alderson, 119 U.S. 185, 187.) The service of the summons on the codefendant, the Columbia Trust Company, could give no jurisdiction over the non-resident defendant, nor did that service give the court jurisdiction over the property of the non-resident defendant which may have been within the custody of the Columbia Trust Company.
(Code Civ. Proc. §§ 707, 1217; Haase v. Michigan Steel Boat Co., 148 App. Div. 299.) An action brought against a non-resident, where substituted service is made, is in the nature of an action in rem. ( Pennoyer v. Neff, 95 U.S. 714; Haase v. Michigan Steel Boat Co., supra; Chesley v. Morton, 9 App. Div. 461.) If there be no res within the State, there is nothing upon which the court can exercise its jurisdiction. Indeed, a judgment cannot be entered unless there is property here. Jurisdiction to enter a personal judgment cannot be obtained by substituted service.
We think that the present order may be sustained without going so far as that, and without nullifying subdivision 1 of section 438 of the Code of Civil Procedure. It is agreed by all the authorities that an action brought against a non-resident by substituted service is in the nature of an action in rem. ( Pennoyer v. Neff, 95 U.S. 714; Chesley v. Morton, 9 App. Div. 461. ) If there be no res within the State there is nothing upon which the court can exercise its jurisdiction, and if there be property within the State the judgment can have effect only upon that property. Unless, and we may say until, there is property of the defendant within the State, the court acquires no jurisdiction to enter any judgment. By substituted service it acquires no jurisdiction in personam of the defendant, and he is not called upon to respond to the summons.
Orders of publication were held improper in Bryan v. University Pub. Co. of N.Y. ( 112 N.Y. 382) and in Von Hesse v. Mackaye (55 Hun, 365; affd., 121 N.Y. 694) on the ground that the personal property in controversy was not within this State. In Chesley v. Morton ( 9 App. Div. 461) the order was upheld on the ground that the action partook of the nature of one in rem. The plaintiff asks that it be adjudged that she is the sole and absolute owner of the deposit, and that the claim of the defendant Patrick thereto, if any, be determined.
To support the order appealed from it is necessary that the moving papers should establish not only that the defendant is a foreign corporation, but that the complaint demands judgment that a vested or contingent interest in or lien upon specific real or personal property within the State in favor of either party be enforced, regulated, defined or limited, or otherwise affecting the title to such property. In Chesley v. Morton ( 9 App. Div. 461), on appeal from an order vacating an order directing the service of the summons by publication in an action brought by an administrator appointed in this State against a resident of Massachusetts for an accounting of a copartnership formerly existing between plaintiff's decedent and the defendant, Mr. Justice BARRETT, after citing the provisions of sections 438 and 439 of the Code, said of section 439: "This latter section, it has been held, requires not only that the facts alleged shall show a cause of action, but also that such cause of action shall be one of which the court where suit is brought may take cognizance. ( Bryan v. University Publishing Company, 112 N.Y. 382; Paget v. Stevens, 143 id. 172.) The court may lack jurisdiction either, as in the Paget case, through statutory limitations placed upon its power, or, as in the Bryan case, by reason of the absence from this State of the person sued or the subject-matter of the action.