
    Geoffrey T. Clarkson, as Liquidator of the Sovereign Bank of Canada, Respondent, v. George P. Butler, Appellant.
    First Department,
    June 2, 1916.
    Process—summons—service by publication — proof that defendant was not absent from State.
    Service of a summons by publication made under subdivision 3 of section 488 of the Oode of Civil Procedure, upon the ground that the defendant, an adult resident, has been continuously without the State more than six months next before the granting of the order for service without designating a person upon whom service may be made, should be set aside, where the defendant conclusively shows that he was not absent from the State when the order was made and had not been absent therefrom for over two months.
    Appeal by the defendant, George P. Butler, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of May, 1916, denying his motion to vacate and set aside the service of a summons by publication and the judgment entered thereon.
    
      H. A. Cushing, for the respondent.
   Scott, J.:

The plaintiff obtained an order for substituted service of the summons under subdivision 3 of section 438 of the Code of Civil Procedure, on the ground that defendant, being an adult and a resident of the State, had been continuously without the State more than six months next before the granting of the order and had not made a designation of a person upon whom a summons in his behalf might be served, and that personal service upon the defendant within the State could not, after diligent effort, be made.

The order for substituted service was made on June 28, 1915, and the affidavit alleging defendant’s continuous absence from the State for more than six months was verified June 25, 1915.

Upon defendant’s failure to appear proceedings were had which resulted in a judgment against him for a large sum of money.

He now presents proofs showing very conclusively that he was not absent from the State on the day the order was made and had not been absent therefrom, at least since April 8, 1915. So the essential fact stated in the affidavit upon which the order for substituted service was made was erroneously stated.

It follows that the order appealed from must be reversed, with ten dollars costs and disbursements, and the motion to vacate the order for substituted service and the service made thereunder and the judgment entered thereon must be granted.

Clarke, P. J., Dowling, Smith and Page, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted.  