
    Susie V. Hollender, as Administratrix, etc., of John A. Goodenough, Deceased, Respondent, v. Frederick H. Wallace, as Administrator, etc., of Christopher D. Wallace, Deceased, Appellant.
    First Department,
    April 9, 1915.
    Process — service by publication — personal "service upon defendant — failure to serve defendant with notice required by sections 442 and 443 of Code of Civil Procedure.
    Where a plaintiff, after obtaining an order for the service of a defendant by publication, did not publish the order, but personally served him with a copy of the order and the summons and complaint in the foreign State, and did not serve or attempt to serve the notice required by sections 443 and 443 of the Code of Civil Procedure, the attempted service should be set aside.
    Ingraham, P. J., and Clarke, J., dissented, with opinion.
    Appeal by the defendant, Frederick H. Wallace, as administrator, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 22d day of January, 1915, denying his motion to set aside an order of publication in this action and an alleged service of the summons and complaint pursuant thereto.
    
      Gilbert E. Roe, for the appellant.
    
      William H. Osborne, for the respondent.
   McLaughlin, J.:

Action to establish an alleged lost or destroyed will. The defendant is a resident of the State of Illinois. On July 21, 1914, the plaintiff obtained an order for the service of defendant by publication and he was personally served with a copy of the order and the summons and complaint on August 20, 1914, in the State of Illinois. The order was not published — plaintiff relying upon the aforesaid service to give the court jurisdiction of the defendant and the subject-matter of the action. After the service had been made in the manner indicated, the defendant, appearing specially in the action, made a motion to set aside the order of publication and the alleged service thereunder upon the ground, among others, that he was not served with the notice required by sections 442 and 443 of the Code of Civil Procedure. The motion was denied and defendant appeals.

Section 442 of the Code of Civil Procedure prescribes the form of notice to he published with the summons, where service is made by publication. Section 443 provides: “Where service is made without the State * * * the papers specified in the last section must be previously filed; and a notice must be served with the summons, in all respects like the notice required by the last section, except that the words, without the State of New York ’ must be substituted for the words, ' by publication.’ ”

It is not claimed that the notice prescribed by this section, or in fact that any notice, was served upon the defendant, but the respondent contends that such omission was a mere irregularity, in no way affecting the service made, and this was the view entertained by the court at Special Term, as appears from his opinion. An examination of the authorities relied upon (McCully v. Heller, 66 How. Pr. 468; Loring v. Binney, 38 Hun, 152; Close v. Calder Co., 139 App. Div. 175; affd., 203 N. Y. 590; Denman v. McGuire, 101 id. 161) does not, I think, sustain this contention. In each case an attempt was made to comply with the statute by serving a notice. I have been unable to find any authority holding that the service was good, even though no notice whatever were served. The true rule to be applied, where service is attempted to be made in the manner here sought, is stated by Judge Chase in Mishkind-Feinberg Realty Co. v. Sidorsky (189 N. Y. 402). He said: “Service of the summons, that is, notice of the commencement of the action and an opportunity by a defendant to appear and defend his rights and interests, are the important prerequisites to jurisdiction by a court. Our Code of Civil Procedure prescribes how notice must be given, and a substantial compliance with such notice is necessary. Unimportant and unessential variations from the form of notice prescribed not affecting the substantial rights of the defendant are irregularities which may he cured by amendment pursuant to the general authority of the court to amend a process, pleading or other proceeding in furtherance of justice.”

Here there was not a substantial compliance with the section of the Code referred to, because no notice whatever was served. The omission to serve the notice cannot be treated as unimportant, nor can it be treated as an unessential variation from the form of notice prescribed by the Code. Unless the provision in section 443 of the Code of Civil Procedure which requires that ‘ a notice must be served ” is to be treated as a nullity, the service obtained was clearly insufficient to give the court jurisdiction. The defendant has challenged its sufficiency by the proper motion for the purpose. I am of the opinion that the motion to set aside the attempted service should have been granted. This conclusion renders it unnecessary to consider the other objections raised by the appellant.

The order, in so far as it denied defendant’s motion to set aside the attempted service, is reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Lattghlin and Scott, JJ., concurred; Ingraham, P. J., and Clarke, J., dissented.

Ingraham, P. J. (dissenting):

I dissent. I think the service was in substantial compliance with sections 442 and 443 of the Code of Civil Procedure, and the failure to serve the notice was a mere irregularity which could be supplied by the court. Where the complaint and a copy of the order directing service by publication were served on the defendant with the summons a separate notice as provided for by section 442 of the Code was unimportant. That notice was required when the summons was published, to inform the defendant as to the date and place of filing of the order providing for the service by publication. Where a copy of the order is served on the defendant personally it supplies the information which the notice would give. The notice is only required to state that the summons was served on the defendant pursuant to the order of the judge granting the order of publication, with date and place where the order was filed. Now these facts, appeared, by the order itself, a copy of which was served on the defendant with the summons and complaint. I think, therefore, there was a substantial compliance with the provisions of the Code, and the service was good under the principle stated by the Court of Appeals in Mishkind-Feinberg Realty Co. v. Sidorsky (189 N. Y. 402). I think, therefore, the order should be affirmed.

Clarke, J., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Order to be settled on notice.  