
    HALL v. HALL.
    N. Y. Supreme Court, First District, Chambers ;
    
    
      September, 1889.
    
      Pvhiiaation; affidavits.] An order for the publication of summons in divorce, should not be granted where the only proof as to the non-residence of the defendant, is the plaintiff’s affidavit.
    
    Motion for an order of reference.
    This was an action for a divorce. The summons wa& served upon the defendant by publication, the order for publication having been obtained upon the plaintiff’s affidavit, without other proof, of the defendant’s absence from the State.
    The defendant did not appear and the plaintiff now moves for an order of reference.
    
      
       This, it seems, is a prudential rule to guard against the danger of fraud; although it may not be a jurisdictional question as it is not held here that a judgment obtained on such service would be void.
      The statute forbidding service of summons by the plaintiff does not apply to the service of a citation in a surrogate’s court (Wetmore v. Parker, 52 N. Y. 450 ; affi’g 7 Lans. 121), and although the statute forbids him from serving summons, he is not thereby precluded from making proof of service (White v. Bogart, 73 N. Y. 256).
      If the plaintiff is the only person accessible who has knowledge of the residence, it is best to cause diligent efforts to be made by another person under the rule in Denman v. McGuire, 101 N. Y. 161, and take his affidavit with the plaintiffs.
    
   Van Brunt, P. J.

The application for order of reference must be denied. The service by publication is entirely insufficient. The order was granted upon the affidavit of the plaintiff alone, with no other proof of non-residence or removal from the State. As the plaintiff would not be permitted to serve the summons personally, certainly an order of publication should not be granted solely upon his affidavits. Such a procedure would open the door to the grossest fraud. The papers are defective in other particulars, which, however, it is not necessary to notice.  