
    Richard G. Buford, Appl’t, v The New York Iron Mine et al., Resp’ts.
    
      (New York Superior Court, General Term,
    
    
      Filed May 7, 1888.)
    
    
      1. Summons—Service on non-resident defendants—Order for—Code Civ Pro., § 440.
    An order made under the Code of Civil Procedure, section 440, directed the service of the summons and complaint in this action, and the order upon the non-resident defendants without the state, but contained no direction regarding the publication of the summons or mailing the summons, complaint and order. Held, that the order was void.
    3. Appeal—What matters considered upon.
    A motion was brought on by an order to show cause which did not designate any time for its service. Preliminary objection was taken on that ground, hut after an adjournment the motion was argued on its merits. Held, that on an appeal from an order made on the motion, the preliminary objection should not be considered.
    
      Appeal from an order vacating a prior order authorizing service of summons personally without the state.
    Three of the defendants, residents of Marquette, Michigan, were served personally there with summons, complaint, order and notice, under section 440 of the Code of Civil Procedure. The order did not contain the provisions for publication or mailing, but only the provisions contained in that section for service without the state. The order appealed from set aside and vacated the order for this service, with costs to defendants. The motion being brought on by an order to show cause which did not specify any time for its service, a preliminary objection was taken by plaintiff that it did not comply with the requirements of section 180 of the Code of Civil Proceedure.
    The following is the opinion of the special term:
    Truax, J.—I think that the preliminary objection has been waived by the adjournment. Section 440 is mandatory and must be complied with in order to give the court jurisdiction. It differs somewhat from section 135 of the old Code, and for this reason, Abrahams v. Mitchell, 8 Abb., 123, is not an authority, nor is Weil v. Martin, 24 Hun, 645, an authority for plaintiff. In the W cil case, the plaintiff simply did not wish to avail himself of the option given by section 440, and, therefore, did not put into the order the provision for personal service.
    
      Roger M. Sherman, for app’lt; Barlow & Wetmore, for resp’ts.
   Freedman, J.

As both parties have conceded that an adjournment of the motion was had, and that the motion was argued below on the merits, the preliminary objection raised below should not be considered on the present appeal.

The merits of the motion depend upon the construction of section 440 of the Code of Civil Procedure. The point that the order which was vacated, contained no direction whatever as to a publication of the summons, but only an authorization for personal service without the state, was passed upon in Ritten v. Griffith, 16 Hun, 454, and decided adversely to the appellant. The case referred to was distinguished in Weil v. Martin, 24 Hun, 645, and in O’Neil v. Bender, 30 Hun, 204, but it has never been overruled. If the point had never been squarely passed upon, I perhaps could persuade myself to reach a different conclusion. But it has been expressly decided by a general term of the supreme court, and no sufficient reason has been shown why this court should not follow the decision then and there made. The question is a close one, and it can be set at rest only by the court of appeals, and it should be submitted to that tribunal for final determination.

Abraham v. Mitchell, 8 Abb., 123, arose under section 135 of the former Code, the language of which differed from the language of section 440 of the Code of Civil Procedure.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Sedgwick, Ch. J,, and O’Gorman, J., concur.  