Opinion
February 7, 1957
Epstein Jacobson for defendant.
Gorman Nestor for plaintiff.
This is a motion to vacate and set aside the service of the summons herein on the ground that the court has not acquired jurisdiction. In his affidavit of service the process server who served the summons states: "I served the summons and complaint in this action upon Harold R. Lister, the defendant herein named, by affixing to the outer door of said defendant's residence since admittance could not be obtained upon reasonable application or a person of proper age and discretion found who would receive the same, true copies of said order and said summons and complaint."
Where substituted service is resorted to the affidavit of service should show that the provisions of the statute (Civ. Prac. Act, § 231) have been fully complied with. This the affidavit of the process server herein fails to do in that he does not recite what steps he took in attempting to gain admittance to defendant's residence, or to find a person of proper age therein, before adopting the alternative method of service. Jurisdiction over the person of the defendant by substituted service may be obtained only by strict compliance with the statute.
However, there is a distinction between service and proof of service. One is a fact of which the other is the evidence. It is the fact of proper service which confers jurisdiction. If the process server herein actually made a reasonable application to obtain admittance to defendant's residence, and was unable to obtain admission, or to find a person of proper age and discretion on the premises, then the summons was properly served, and an insufficient proof thereof will not take away the jurisdiction which in fact has been obtained. The plaintiff should be given an opportunity to supply additional proof of proper service ( Lehman v. Mariano, 285 App. Div. 824). Motion is granted unless within 10 days after service of a copy of the order to be entered hereon the plaintiff submits an affidavit of service showing full compliance with the provisions of section 231 of the Civil Practice Act.
Settle order.