
    Alice Breed Godfree, Respondent, v. Charles Horace Godfree, Appellant.
    First Department,
    March 19, 1915.
    Process — service without State by publication — Code of Civil Procedure, sections 440 and 443, construed — form of order.
    Section 440 of the Code of Civil Procedure, as amended by chapter 346 of the Laws of 1914, provides for service without the State by publication only, and subdivision 3 of section 443, providing that “ In all eases when publication is ordered, personal service of a copy of the summons and complaint * * * out of the State, is equivalent to publication and deposit in the post office,” may be invoked only “ when publication is ordered.”
    Hence, an order made in the alternative, that the summons be published or that it be served personally without the State, which, instead of requiring “that on or before the date of the first publication,” plaintiff deposit in the post office, etc., used the words “third publication,” is fatally defective.
    Appeal by the defendant, Charles Horace Godfree, appearing specially for that purpose, 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 16 th day of December, 1914, denying his motion to vacate an order permitting the service of the summons herein by publication, and also from an order entered in said clerk’s office on the 8th day of December, 1914, permitting the plaintiff to supply the insufficiencies existing in the papers upon which such order is founded.
    
      Leo B. Brilles, for the appellant.
    
      Francis Colety, for the respondent.
   Hotchkiss, J.:

The action is for divorce. The order was in the alternative, that the summons be published or that it be served personally without the State. The grounds of the motion to vacate were: (1) That the order instead of requiring “ that on or before the date of the first publication” plaintiff deposit in the post office, etc., used the words “third publication; ” (2) that the papers failed to show that plaintiff had been or would be unable with due diligence to make personal service and that defendant had been continuously without the State for six months.

The court below held the order was unobjectionable in form, but that the papers on which the order was granted failed to show sufficient facts concerning defendant’s absence from the State, and gave plaintiff leave to file additional affidavits on this subject, of which leave plaintiff availed herself. As to these affidavits defendant claims that the motion went to jurisdictional defects in the order which could not be so corrected. However this may be, I think the order was fatally defective in form and that on this ground the order appealed from must be reversed.

Prior to the year 1914, section 440 of the Code provided that the order for publication must direct that service of the summons be made by publication, or at plaintiff’s option that the summons and complaint and order be served upon the defendant personally without the State. Under this section it was held in Matter of Field (131 N. Y. 184) that it was not necessary for the order to contain a provision for both methods of service, but that “ the order may direct the service by due publication or may direct the service by personal delivery without the State in the manner prescribed; and an order directing either mode alone, followed by due service in that manner will be equally good with one which directs both, with an option to choose either. ” In Sabin v. Kendrick (2 App. Div. 96) the order provided in the alternative for each method of service, but that portion providing for service by publication was fatally defective. The court held that this did not invalidate the entire order because it still remained good as an order for personal service without the State. In 1914 section 440 was amended by eliminating that portion which gave plaintiff the option to make personal service without the State, and as the section now stands it provides for service by publication only. (See Laws of 1914, chap. 346.) The learned court below, however, invoked section 443, subdivision 2, which provides: “In all cases when publication is ordered, personal service of a copy of the summons and complaint * * *, out of the State, is equivalent to publication and deposit in the post-office.” (See Laws of 1914, chap. 346.) This provision the court held is the equivalent of the option which by the aforesaid amendment was eliminated from section 440, and from this fact the court concluded that notwithstanding the order was defective in that portion which provided for service by publication, inasmuch as by section 443 there still remained to plaintiff the privilege to serve personally without the State, the order was valid as the basis for such service, when a proper state of facts had been made to appear by additional affidavits. But section 443 may he invoked only “when publication is ordered.” Clearly this refers to a valid order of publication and not to one fatally defective.

It is unnecessary to express any opinion on the question whether the additional affidavits were properly received, as they did not affect the form of the order.

The orders should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Clarke, Laughlin, Scott and Dowling, JJ., concurred.

Orders reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.  