
    Reuben A. Adams, Resp’t, v. Nancy Ann Hilliard et al., App’lts.
    
      (Supreme Court, General Term. Fifth Department,
    
    
      Filed April 16, 1891.)
    
    1. Attachment—Contract—Code Civ. Pro., § 1843.
    A claim of a physician for professional services rendered to a testatrix is one arising upon contract within the meaning of § 1843 of the Code.
    . 2. Same—Affidavits.
    Affidavits showing a claim against a testatrix arising upon contract; that she left no personal property; that her heirs and next of kin reside without the state, giving the actual residences of each, and stating the source of information to he affidavits and the judgment roll on file in the clerk’s office in an action of partition of testatrix’ real estate, and from correspondence with such heirs, and that the sheriff, after due diligence, has not been able to make service within the state, together with the certificate of the sheriff to that effect, are sufficient to sustain an action against such non-resident heirs.
    Appeal by the defendants from an order of the Monroe special term, denying a motion to vacate an attachment.
    
      William B. Hale, for app’lts; W. Martin Jones, for resp’t.
   Corlett, J.

The complaint alleges, in substance, that Catherine J. McKale died on the 9th day of August, 1884, in the city of Eochester, leaving a will by which W. Martin Jones was appointed executor. The material parts of the will are as follows:

“First. After all my lawful debts are paid and discharged, I give and bequeath unto my sister, Nancy J. McKale, formerly of Hull, Ontario, if living at the time of my decease, and to her heirs and assigns forever, the sum of three hundred dollars, provided, however, that if neither my said sister or her lawful representatives shall be found within five years from my decease, then I give the said sum of three hundred dollars to my sister, Mary Butler, widow of Patsy Butler, of Canada.
“ Second. I give, devise and bequeath unto the child of my brother, John McKale, formerly of Hull, Ontario, the sum of $300; provided, however, that if said child be not living at the time of my decease, or if not found in five years thereafter, then I give said sum to my sister, Mary Butler.
Third. I give, devise and bequeath unto my said sister, Mary Butler, all the rest, residue and remainder of my estate, both real and personal, of which I may die seized or possessed, or to "which I may in any manner be entitled at the time of my decease.
Fourth. I give unto my executor, hereinafter named, full power and authority to contract for the sale, and to sell any or all real estate of which I may die seized or possessed, giving full and perfect title thereto.”

The deceased at the time of her death left some land in the city of Eochester, being lots 23 and 24, having a front of about 234 feet on the west side of South Union street, extending back 108 feet. The testatrix left her surviving the defendants in this action, heirs-at-law and next of kin.

The complaint also alleges that all the defendants reside either in Canada or Michigan, except the defendant, James A. McKale.

The plaintiff was a physician and surgeon, engaged in the practice of his profession in the city of Eochester in 1883 and 1884. In the former year he rendered medical services for the testatrix, Catherine J. McKale, of the value of forty-three dollars, and in the year 1884, he and his partner rendered services of a like character of the value of $179, amounting in all to $222, with interest, of which the plaintiff became the sole owner. The plaintiff presented the above claims for services to the executor, by whom they were allowed, but never paid.

The land above mentioned was sold in an action of partition. The proceeds of the sale are the only assets or funds available to the payment of the plaintiff’s demand. This action was brought to recover for those services.

In November, 1890, the plaintiff obtained an attachment from a justice of this court at chambers against the non-resident defendants. The application was based upon the verified complaint (which includes a copy of the will), the affidavit of Eeuben Adams, sworn to on the 29th day of November, 1890, and the affidavit of the plaintiff’s attorney, W. Martin Jones, verified on the same day. The formal parts of the affidavit of Adams recite, in substance, the allegations contained in the complaint, and that the testatrix left no personal property out of which the plaintiff’s debt could be collected.

The affidavit then states “ that all said legatees, heirs and next' of kin reside without the state of New York except the defendant, James A. McKale ; that there are no offsets against said claim, as deponent is informed and verily believes, and he is j ustly entitled to recover the said sum of money so first above specified, with interest, as aforesaid, over and above all counterclaims, discounts and set-offs known to the plaintiff; that plaintiff is informed and believes that all of the defendants except the said James A. McKale have resided out of the state of Now York at all times and at places as follows :

Nancy Ann Hilliard and Nancy Jane Butler reside at Cadilac in the state of Michigan; the defendant, Bartholomew McKale, and Margaret McKale, his wife, reside at Avoca, in the province of Quebec; that the defendant, Anthony McKale, and Margaret McKale, his wife, reside at Cassabasaway, in the province of Quebec ; that the defendant, Anthony Butler, and Anna Butler, his wife, reside at Ottawa, Ontario; the defendants, John Butler and Martha Butler, his wife, reside at Rochesterville, in the province of Ontario; that the defendant, Mary Elizabeth Burns, resides at Renfrew, in the province of Ontario; and that the residence and whereabouts of the defendants, Bridget McKale and Margaret McKale, are unknown to plaintiff, and the same cannot be ascertained after due diligence on the part of the plaintiff; that they were sisters of the half blood of the said Catharine J. McKale, and at one time resided in the dominion of Canada, but that plaintiff, after due diligence, has been unable to ascertain their present place of residence; that plaintiff’s source of information concerning the residence of said defendants is obtained from affidavits on file in the office of the clerk of the county of Monroe, and in papers comprising the judgment roll in the action for partition referred to in plaintiff’s complaint, wherein Nancy Ann Hilliard was plaintiff and the other defendants herein were defendants.”

The affidavit of the attorney on the subject of residence is as follows:

“That he is personally acquainted with one of the defendants in this action, James A. McKale, who resides in the city of New York; that he has met the husband of the defendant, Hilliard, but has never met any of the other defendants in this action; that he has corresponded with the defendant Hilliard and several of the other defendants in the action, and that from such correspondence he is satisfied that they are all residents either of the state of Michigan or of the dominion of Canada; that he has placed the summons in this action in the hands of the sheriff of Monroe county for service, and that he has made due and diligent effort to secure such service upon the defendants in this state; that after placing such summons in the hands of the sheriff of Monroe county the sheriff, after due and diligent effort, was unable to make such service within the county of Monroe or state of New York, as appears by his certificate hereto annexed.”

The certificate of the sheriff above referred to is to the effect that the defendants cannot be found in the county of Monroe, and that, so far as the sheriff could learn, they were not residents of the state.

Application was made in December, 1890, to vacate - the attachment at special term, in Rochester, based on the same papers on which it was granted. This was denied, and the defendants appealed to this court.

Applying to-the papers and affidavits in this case the doctrine of construction adopted by this court in Jaffray et al. v. Hast et al., 32 N. Y. State Rep., 250, and Leiser v. Rosman, id., 739, they were sufficient to authorize the issuing of the attachment. To the same effect are Pierson v. Freeman, 77 N. Y., 589 ; James v. Richardson, 39 Hun, 399 ; and Buell et al. v. Van Camp, 119 N. Y., 160; 28 N. Y. State Rep., 947.

The learned counsel for the appellants insists that the cause of action alleged in the complaint did not arise upon a contract, express or implied, under § 1843 of the Code of Civil Procedure, and cites, in support of his contention, Wilson v. Harvey, 52 How. Pr., 126, which, so far as material here, simply decided that the law does not imply a promise from a child to pay for necessaries furnished without his request to an indigent parent, and that such a cause of action did not arise upon contract.

He also cites. McCoun v. N. Y. C. & H. R. R. R. Co., 50 N. Y., 176. That action was to recover a penalty created by statute. But this action arose upon a contract, and is for the recovery of money.

An implied contract is created by law to establish justice between parties. It does not require mutual consent, but may bind a party against his will. Bishop on Contracts, §§ 28, 184, 204, 205, 214 and 237; United States v. Graff, 67 Barb., 304.

The order appealed from must be affirmed.

Order affirmed, with ten dollars costs and disbursements.

Dwight, P. J., and Macomber, J., concur.  