
    John Middleton, Plaintiff, v. Michael Montague, Defendant.
    Second Department,
    October 4, 1912.
    Process — service of summons by publication — sufficiency of affidavit.
    Affidavit upon which an order for the service of a summons by publication in a suit of foreclosure was granted under section 185 of the Code of Procedure as it existed in the year 1858, examined, and held, sufficient to confer jurisdiction On the court and that the title obtained through the foreclosure sale was marketable.
    Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.
    
      H. C. Underhill [Adolph Vanrein with him on the brief], for the plaintiff.
    
      H. Irving Gordon, for the defendant.
   Hirschberg, J.:

The question involved in this submission relates to the marketability of certain real estate in the borough of Brooklyn. The action is for damages resulting from breach of warranty, the decision of the question submitted depending upon the sufficiency of an affidavit on which an order was granted for the pubhcation of a summons in an action to foreclose a mortgage upon the real estate in the year 1858. The plaintiff claims that the order was invalid because of the insufficiency of the affidavit, while the defendant claims that the affidavit was sufficient to confer jurisdiction to make the order. The defendants served by publication were the widow and the children of Joseph Tryon, the former owner of the equity of redemption, then deceased.

At the time of the foreclosure, section 135 of the Code of Procedure provided that “Where the person, on whom the service of the summons is tó be made, cannot, after due diligence, be found within the State, and that fact appears by affidavit to the satisfaction of the court or a judge thereof, * * * such court or judge may grant an order that the service be made by the publication of a summons. ” (See Laws of 1851, chap. 479.) The affidavit on which the order for publication was granted stated “ That the said defendant Margaret P. Tryon is the widow of said Joseph Tryon, deceased, and the said defendants Joseph Tryon, Florence Tryon, William Tryon and Margaret Tryon are the children of the said Joseph Tryon, deceased. That deponent has for the purpose of serving the summons in this action, which is hereto annexed, on the. aforesaid widow and children, made inquiry of every person whom he supposes could give him any information as to the place of residence or present whereabouts of either the said widow or either of said children, and that from information derived from Mr: Nathaniel Wolff, who was formerly a partner of said Joseph Tryon, deceased, and the Executor of his said will, he is informed and he believes such information to be true that neither said widow or any of said children reside within this State, or can be found therein, and further that said widow and the said defendants Joseph Tryon and Margaret Tryon reside at No. 86 Garden Street, Hoboken, in the State of New Jersey, and that the said Florence Tryon and William Tryon reside with one Otis Norciss at Boston, in the State of Massachusetts. ”

The order in question was granted by a justice of the Supreme Court, and I think the affidavit was sufficient to confer jurisdiction upon him, to determine that the parties to be served were not at that time within the State, and that they, therefore, could not be found therein after due diligence. It gave in full the sources of the affiant’s information and belief. It proved diligence in the making of inquiry of every person likely to know not only the actual residence of the parties hut their “ whereabouts ” at the time of the inquiries. And the result of the inquiries was information to the effect that the parties were not only then non-residents of the State, hut that they could not then he found in the State.

The case of Belmont v. Comen (82 N. Y. 256) seems controlling. In that case the affidavit merely stated on information and belief — the source of the information being disclosed •—that the parties to be served resided in Connecticut, and that a summons to he served on tliem had been issued and delivered to the sheriff of the county of New York, and that the sheriff after due diligence could not find them in that county. The Court of Appeals held that the affidavit was sufficient.(p. 259) “to enable the judge to intelligently be satisfied, that after due diligence the defendant could not be found within the State.”

The case of Carleton v. Carleton (85 N. Y. 313), chiefly relied upon by the plaintiff, is essentially different. There the affidavit was limited to proof of non-residence, and no facts were disclosed tending to indicate that the defendant was not within the State. The court distinguished the case from the Belmont Case (supra), saying (p. 316): “In the case of Belmont v. Cornen (82 N. Y. 256), the affidavit contained allegations tending to show that an effort had been made to find the defendant within the State and that he was not there, and hence it conferred jurisdiction upon the court or judge to pass upon the question of the sufficiency of the proof. The. affidavit here contains no such averment, and rests entirely upon the fact of non-residence- and the inference arising therefrom.”

In Kennedy v. N. Y. Life Ins. & Trust Co. (101 N. Y. 487) an affidavit was held sufficient, at least where collaterally brought in question, which only stated that the defendants “cannot, after due diligence, be found within this State,” that they were residents of other States named, and that the summons “was duly issued for said defendants, but cannot be served personally upon them by reason of such non-residence.” Tp the same general effect is the decision in Crouter v. Crouter (133 N. Y. 55). That case arose under section 439 of the Code of Civil Procedure, the substitute for the former section 135 of the Code of Procedure, requiring proof “ that the plaintiff has been or will be unable, with due diligence, to make personal service of the summons.” It was held, according to the head note, that an affidavit was sufficient to sustain an order of publication which “ stated the non-residence of the defendants and that they had no place of business in New York; that plaintiff believed that a summons could not with due diligence be served personally within the State; that plaintiff had personal knowledge of defendants’ movements, and was satisfied that they frequent no place in the State. ”

The defendant’s title to the property in question is derived through various mesne conveyances from tíre purchaser at the foreclosure sale, and it follows from what has been said that he is entitled to judgment dismissing the plaintiff’s claim, and adjudging that the title is good and marketable, but, in accordance with the terms of the submission, without costs.

Burr, Thomas, Carr and Rich, JJ., concurred.

Judgment for defendant in accordance with the terms of the submission, without costs.  