
    COURT OF APPEALS.
    Edmund Phinney and others agt. Edmund Broschell and others.
    
      Order for publication of summons—must be made by a judge out of court— Caption of an or dm' not controlling as to its cha/ractm'—when an or dm' entitled at special term, may be shown to Time been made out of court.
    
    Where a warrant of attachment having been granted against the property of the defendants as non-residents, an order was obtained for the service of the summons by publication which was entitled, “At special term of the supreme court of the state of New York, held at chambers. Present, hon. Abraham R. Lawrence, justice;” it recited: “The plaintiffs having presented to me the verified complaint in this action, * * *
    and having also made proof to my satisfaction that said defendants are not residents of this state; ” it was signed “Enter. A. R. L., J. 8. 0.” It did not appear that the order had ever in fact been entered as a court order, but it was shown that the order was in fact made and signed out of court, in the judge’s private room:
    
      
      Held, that it was good as a chambers order of the judge, and a service of the summons by publication in pursuance thereof was effectual (Affirming 8. O., 19 Sun, 116).
    The caption of the order and the direction to enter are not conclusive as to its character, but the court will look at the facts as proved by the papers to exist to determine its character.
    
      April, 1880.
    A warrant of attachment having been granted against the property of the defendants as non-residents, an order was obtained for the service of the summons by publication. The order was entitled, “At a special term of the supreme court of the state of Hew York, held at chambers. Present: hon. Abraham E. Lawrence, justice.” It recited: “ The plaintiffs having presented to me the verified complaint in this action, * * * and having also made proof to my satisfaction that said defendants are not residents of this state.” It was signed “ Enter. A. E. L„ J. S. 0.” It did not appear that the order had ever in fact been entered as a court order.
    The defendants, appearing for the motion only, moved to vacate the attachment on the ground that the order for publication was made by the court and not by a judge {Code Gi/oil Proc., sec. 440), and relied on the case of Hershon agt. Knickerbocker Life Insurance Company {Alba/ny Lamo Journal, June 7, 1879).
    The plaintiffs showed, in opposition to the motion, that the order was in fact made and signed out of court, in the judge’s private room.
    The motion to vacate was granted at special term. The plaintiffs appealed to the general term, where the order of the special term was reversed, and the motion denied (19 Hun, 116). The defendants thereupon appealed to the court of appeals.
    
      F. jE. Olcoit and J. F. Mosher, for plaintiffs.
    
      Qoudert Brothers and Fdmoa/rd Patterson, for defendants.
   Rapallo, J.

The appellants claim that the order of publication in this case was not made by a judge, but by the court at special term, and was, therefore, void. This is the only point in the case. It appears that the order was, in fact, made by judge Lawrence, out- of court, in his private chambers. His name appears in the caption, and in the body of the order it purports to be made by a judge. It recites, “ the plaintiffs having presented to me,” &c., and having proved to my satisfaction,” &c., ordered, &c. It is signed by the judge with his initials, and his official title is abbreviated. The appellant relies on the fact that it has a caption, “ At a Special Term held at Chambers,” and that there is a direction to enter; but it does not appear to have been in fact entered as a court order. The general term held that it was good as a chambers order of the judge. The question is purely one of form, and we are not inclined to differ with the court below on such a technical point of practice.

Order affirmed, with costs.

All concur, except Andrews, J., absent.  