
    LUDDEN v. DEGENER.
    (Supreme Court, Appellate Division, First Department.
    February 19, 1897.)
    Personal Service Out op State—Service op Order for Publication.
    A personal service of summons and complaint on a defendant outside the state, without service of a copy of the order for publication (Code Civ. Proc. § 440), is insufficient.
    Appeal from special term, New York county.
    Action by Julius E. Ludden against Frederick L. Degener. From an order denying a motion to vacate an order for publication of summons and to set aside service of the summons and complaint, made without the state, defendant appeals. Modified.
    Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, WILLIAMS, and PATTERSON, JJ.
    Benjamin Tuska, for appellant.
    Hector M. Hitchings, for respondent.
   WILLIAMS, J.

We think there was a sufficient affidavit to authorize the granting of the order for the publication of the summons. The service of the summons and complaint, however, was not properly made, because a copy of the order for publication was not served therewith, as required by the order made under section 440, Code Civ. Proc. The language of this section of the Code is very clear, and the requirement that a copy of the order be served when personal service is made without the state cannot be disregarded, and the service still be deemed sufficient to give jurisdiction of the defendant. Section 443 has no reference to the service of a copy of the order, and in no way dispenses with the requirement of section 440. Section 443 relates merely to the form of the notice to be served with the summons in case personal service is made without the state, instead of by publication. It has been held in this department that the order under section 440 is invalid when it omits the provision requiring a copy of the order to be served with the summons and complaint when service is made without the state. McCool v. Boller, 14 Hun, 73; Johenning v. Johenning, 1 Civ. Proc. R. 145. Certainly, if such omission renders the order invalid, the failure to comply with such requirement, when contained in the order, would render the service insufficient.

The order, so far as it denied the motion to. vacate the order for publication, should be affirmed, and, so far as it denied the motion to set aside the service of the summons and complaint, should be reversed, and the motion to set aside granted, without costs of this appeal or in the court below. All concur.  