
    COOK a. ESLEECK.
    
      Supreme Court, Second District; General Term,
    
    
      February, 1859.
    Summons.—Service bt Publication.
    A summons served by publication, named the court and county as “ Supreme Court, county of Kings,” and described the place at which the complaint would be filed as “ the office of the clerk of the county of Kings, at the City Hall, city of Brooklyn, Kings county,” without adding, “ and State of Hew York and the statement that the complaint had been so filed was not contained in the body of the summons, but subjoined to it in the advertisement, with a separate signature by. the attorneys.
    
      Held, sufficient.
    Appeal from an order granting a motion to compel a purchaser at a judicial sale to complete his purchase.
    This action was brought to foreclose a mortgage made by defendant Esleeck, upon real property in the.eity of Brooklyn, Kings county. The complaint and notice of action pending-were filed in the office of the clerk of that county, on the 2d of November, 1857. The defendants Esleeck and five others were after-wards found to be non-residents, and an order was obtained by the plaintiffs that the summons be served upon them by publication.
    The summons with a notice at the foot of it stating that the complaint had been filed, were published in the following form :
    “ Supreme Court, County of Kings.
    
      \_JFIere followed the names of the parties, plaintiffs and defendants.]
    “ To the above defendants :
    “You are hereby summoned and required to answer the complaint in this action, which will be filed in the office of the clerk of the county of Kings, at the City Hall, city of Brooklyn, Kings county, and to serve a copy of your answer to the said complaint on the subscribers, at their office, Ho. 192 Broad-, way, corner of John-street, New York city, within twenty days after the service of this summons on you, exclusive of the day of such service; and if you fail to answer the said complaint within the time aforesaid, the plaintiff in this action will apply to the court for the relief demanded in the complaint.
    “Dated New Yoke, October 29, 1857.
    “ Miller, Peet & Hichols,
    Plaintiff’s attorneys,
    192 Broadway, New York.”
    “ The said complaint was filed in the said clerk’s office, Hovember 2,1857.
    “ M., P. & H.,
    Plaintiff’s attorneys.”
    The purchaser at the foreclosure sale objected to the title, alleging that- the publication was defective in two respects, viz.:
    1. In that the summons in addition to stating that the complaint would be filed “ in the office of the clerk of the county of Kings, at the City Hall, city of Brooklyn, Kings county,” did not add “ and State of New York.”
    2. In that the summons itself did not state the time and place of filing, but the same was stated in a foot-note by way of appendix or postscript, and not as a part of the summons itself.
    The plaintiff moved at special term for an order compelling the purchaser to complete the purchase. The motion was granted, and the purchaser now appealed to the general term.
    
      J. Davis Dunn, for the appellant, cited Titus a. Relyea, 15 How Pr. R., 371 (see same case more fully represented, Post, 157); Code, § 128 ; 5 How. Pr. R., 56.
    
      Livingston K. Miller, for the respondents, cited Jacquerson a. Van Erben, 2 Abbotts’ Pr. R., 315; Davison a. Powell, 13 How. Pr. R., 287; Keeler a. Betts, 3 Code R., 183 ; Hart a. Kerner, 2 Code R., 50 ; Code, §§ 173-176.
   By the Court.—Lott, J.

The summons issued on the commencement óf this action was directed to the defendants, and they were thereby summoned and required to answer the complaint, and serve a copy of their answer on the plaintiff’s attorneys, “ at thei/r office, 192 Broadway, corner of John-street, Dew Doric city” within twenty days after the service of the summons.'

It also stated that the complaint would be filed “ in the office of the cleric of the county of Kings, at the City Dali, city of Brooklyn, Kings county,” and if the defendants failed to answer within the time prescribed, that the plaintiff would apply.to the court (which in the title w§s named “ Supreme Court, Kings county”) for the relief demanded in the complaint. It was “ dated New York, October 29,1857,” and subscribed “ Miller, Peet & Nichols, plaintiff’s attorneys, 192 Broadway, N. Y.” There was no other specification of the comt in which the action was brought, than in the title as above set forth.

The service of this summons upon six of the defendants was by,its publication in the form in which it was originally issued, together with a statement or notice subjoined, in the following terms : “ The said complaint was filed in the clerk’s office, November 2, 1857. M., P. & N., plaintiff’s' attorneys.”

The object of the action was to foreclose a mortgage held by the plaintiff: the defendants, so served by publication, never appeared:

The usual judgment was entered, and a sale of the mortgaged premises under it was subsequently made to Charles Kelsey.

He refused to take title, alleging as the ground of the refusal, that the proceedings, as to those defendants, were irregular and void, and they are not foreclosed thereby.

The objections taken are—1st, that the summons, in omitting to designate the State of New York therein, does not state where the complaint was to be filed, or specify the place at which the answer thereto was to be served, within the meaning of the Code ; and, 2d, that the summons, as published, does not state the time and place of filing the complaint.

An order was, after considering the objections, made at special term, requiring the purchaser to complete his purchase, and the case is brought up for review, on appeal by him from that order.

The question presented is one of great practical importance. If the first objection is well founded, it will probably affect most of the judgments rendered, since the adoption of the Code, in cases where either of the defendants have failed to appear. The general practice has been, to specify in the summons served the name of the city or town and county only, and if the name of the State in addition is necessary to be stated, it would not be such process as is required and authorized; for the commencement of the action and the service thereof, even if personally made, would be ineffectual, and no jurisdiction could be acquired thereby.

"We cannot yield our assent to such a construction. The provisions of the Code on which this objection is founded are contained in sections 128 and 130. Section 128 prescribes that the summons shall require the defendant “ to answer the complaint, and serve a copy of his answer on the person whose name is subscribed to the summons, at a place within the State, to be therein specified, in which there is a post-office, within twenty days after the service of the summons, exclusive of the day of serviceand section 130 provides that “ a copy of the complaint need not be served with the summons. ■ In such case, the summons must state where the complaint is or will be filed."

The complaint when served must, among other matters, contain “ the title of the cause, specifying the name of the court in which the action is brought, the name of the county in which the plaintiff desires the trial to be had, and the names of the parties to the action, plaintiff and defendant.”

These provisions were intended, primarily, to regulate proceedings in actions against persons resident or found within this State, and to notify the party served with the summons of the commencement of the action, and when and where he can appear and defend.

If such service is made within this State, there can be no reasonable doubt that the party so served understands and is sufficiently informed, that the place where the complaint is or will be filed, and where he is to serve his answer, is within this State, although the fact is not stated in express terms. It is not usual for residents of the same State, in letters or notices addressed to each other, to specify the place where it is written, or from which it is sent, more particularly than by naming the city and town, or at most the county, or some other subdivision of the State, but the State itself seldom, if indeed ever named, and there is no reason to believe that any person has been misled by such designation. When the service is by publication, and the party is a non-resident, there would seem to be some ground for requiring the State to be specified, but even in that case, it is for all practical purposes unnecessary. The publication is to be made in two newspapers published in this State, and if either of them is received by the person to be affected by the notice, there is generally, if not always, sufficient evidence in the newspaper itself of the fact of its publication in this State, and that gives him sufficient notice that the action has been instituted therein. If his residence is known, the complaint, as well as the summons is sent to him, by means of which he becomes apprised of the demand or claim made, and of all the facts stated therein. But assuming there to be a possibility that the summons may fail, in some cases, to apprise the party by whom it is, in fact, received that the place mentioned therein is within the State of New York, that alone does not justify a construction of the language of the provisions above referred to, that is unwarranted by and different from its faiV and ordinary meaning. In the case at bar, there is no reason to believe that the summons failed to give all the information necessary. The designation of the city of Brooklyn as the place where the complaint would be filed, and the number and street in the city of Rew York, where the answer was to be served, was for all practical purposes as specific and certain as if the State of Rew York had been also named. Ro person having knowledge of the existence of such a State can be presumed to be so uninformed as not to know' that those cities are within it, and constitute a part thereof, and a notice directed to either of those cities, without any designation of the State, through the post-office, would not fail to reach the person to whom it was addressed. The first objection is in any view of the case untenable. There is more color for the second, but on examination that will be found to be one of form and not of substance. The Code, after prescribing what the summons should state, and how it shall be served on persons residing or found in this State, by section 135, provides when the person on whom the service of the summons is to be made, cannot be found within the State, that service may, in certain specified cases, be made by publication thereof in two newspapers to be designated as most likely to give notice to the person to be served, in which case it is also required that a copy of the summons and complaint shall be deposited in the post-office, directed to the person to be served at his place of residence, if known, or can by reasonable diligence be ascertained. After prescribing these directions, the section secures to the defendant proceeded against by publication, the right to appear and defend in all cases, except in actions for divorce, even after judgment. It then contains a provision that in all cases where publication is made, the complaint must be first filed, and the summons as published must state the time and place of such -filing. Row, conceding that that there can be only one summons in an action, as is contended by those who insist that the notice or statement below the summons as originally issued in this action,-is not in compliance with the provisions, it appears to me to be the evident intention of this section that the summons adopted in the commencement of the action, in either of the forms authorized by the previous section, is that which is to be published. It refers to a summons already issued. It contemplates, among other-cases, one where the person to be served is in fact a resident of this State, but who cannot, after due diligence, be found therein ; and in all of the requirements prescribed as the basis of the order to be made for its publication, it is assumed that the summons as issued is valid and sufficient, and the action of the court or judge is evoked so for as to dispense with personal service in the manner previously specified, and to authorize a substituted service of the same summons by publication.

If those provisions stood alone, I do not suppose that any one would contend that a new summons was to be issued. The difficulty arises out of the directions referred to, requiring in all cases where publication is made, that the summons, as published, must state the time and place of filing the complaint. This requisition, it will be seen, is confined to the summons as published. It has no reference to the copy which is to be deposited with the complaint in the post-office. Does this necessarily require that the time and place of filing the complaint in such cases should be stated in the body of the summons, as an essential and indispensable part thereof to give it validity, and that the form adopted in this case is insufficient ? If so, the result would be that all proceedings based on the service of a summons in the form authorized by law, when it is issued upon such of the defendants as had been served, would be of no effect, and the party would be obliged to discontinue substantially his proceedings previously taken, no matter at what cost and expense, in good faith, for the reason that he was so unfortunate as not to know in advance that one or more of the defendants was a non-resident, or if a resident, that he would, when the summons was to be served upon him, keep himself concealed with the intent to defraud his creditors, or to avoid the service of the summons, or that, after due diligence, he would not be found in the State. An amendment could not be made. It would make a change, if the objection is valid, in the essential requisites of a summons, and make it a different process; and hence the summons which had been previously served would not be the summons in the action, and, consequently, the service thereof would be ineffectual and inoperative. A construction leading to such results ought not to be given to the above-mentioned provisions unless imperatively demanded. We think it is not required. The substantial part of the summons is that which requires him to appear; and when that is published, accompanied by a notice in which the time and place of filing the complaint is stated, whether in the body of the original summons or immediately below it, as in this case, the object intended by the publication is attained. The party is as effectually apprised and notified of the facts which were required to be communicated to him by one form or the other ; and we think that the requirements of the statute are complied with in either case. It is known to every practitioner of experience, that it becomes necessary in many cases to proceed by publication, when he had no reason to believe at the commencement of the action that such a course would be requisite ; and the general practice has been, when the summons as issued did not state the time and place of filing the complaint, to subjoin a notice in the form or to the effect adopted in this case; and this has been made the basis of the title of many purchasers of real estate under judgments recovered since the Code went into operation; and in view of the consequences, the court ought not to decide that such practice is unwarranted, and thus defeat the titles founded thereon, if it can be sustained or sanctioned by a fair and reasonable construction of the law. We are of opinion that it can, and that the order made at special term, giving such construction, is right, and it must be affirmed.

From the order entered in accordance with this decision the purchaser appealed to the Court of Appeals. The case was submitted on points at the April term, 1859, and the order affirmed. 
      
       Present, Lott, Emott, and J. W. Brown, JJ.
     