
    Robert M. Clare, as Surviving Partner of Charles C. Clare, Dec’d, Resp’t, v. Samuel Lockard, App’lt.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed October 7, 1890.)
    
    Limitation—Substituted service equivalent to publication to save ACTION PROM BAR OP STATUTE UNDER § 399 OP THE CODE.
    Where a summons is delivered to the sheriff for service prior to the expiration of the time prescribed by the statute for the commencement of an action, a substituted service, made after tire expiration of such time, but within the time prescribed by § 399 of the Code, is equivalent to a first publication of the summons to save the action from the bar of the statute under that section.
    
      Appeal from a judgment of the general term of the supreme court, second judicial departtiiént, entered on an order affirming a judgment entered upon a verdict directed by the court.
    This is an action brought by the plaintiff to recover on a promissory note, with interest from the date of its maturity, and also for goods sold and delivered.
    So much of the judgment as embraces the amount found to be due for goods sold and delivered is not questioned. The appellant assigns for error that portion of the judgment which includes the amount adjudged to be due on the note, on the ground that it is barred' by the statute of limitations. The note became due and payable May 20, 1880. Defendant never made any payment on account of either the principal or interest secured thereby. On the 18th day of May, 1886, the plaintiff caused to be delivered to the sheriff of the county in which the defendant resided a summons and notice, with the intent that it should be actually served upon the defendant.
    Before the expiration of the time for the service thereof as provided by § 399 of the Code of Civil Procedure, a return was made by the sheriff that proper and diligent effort had been made to serve the summons upon the defendant, but that he avoided service so that no personal service could be made. Thereafter and on the 8th day of June, 1886, an order authorizing and directing a substituted service of the summons was duly granted, and in pursuance thereof such service was made within ten days thereafter.
    
      Martin M Halpin, for app’lt; John Henry Hull, for resp’t.
    
      
       Affirming 16 N. Y. State Rep., 739.
    
   Parker, J.

Had the sheriff succeeded in making personal service within the time prescribed by § 399, or had there been a first publication of the summons pursuant to an order for service upon him in that manner, then it is conceded that the decision of the court would not admit of question. But the summons was not served personally, or by publication, but a substituted service thereof was timely made in accordance with §§ 435 and 437 of the Code of Civil Procedure. The appellant’s contention is, that while the action was properly commenced by a substituted service of the summons duly authorized, nevertheless it did not operate to save the note from the bar of tire statute, because the summons was not served either personally or by publication. We think otherwise. By §§ 380 and 382 of the Code of Civil Procedure, it is provided that an action upon a contract obligation or liability must be commenced within six years after the cause of action has accrued. Section 398 provides that an action is commenced against any defendant, within the meaning of any provision which limits the time for commencing an action, when the summons is served upon him, or on a co-defendant who is a joint contractor, or otherwise united in interest with him.

To meet any emergency which might arise by the necessary absence or concealment of a debtor, it was provided by § 399 that “ an attempt to commence an action in a court of record is equivalent to the commencement thereof, within the meaning of each provision of this act which limits the time for commencing an action, when the summons is delivered with the intent that it shall be actually served, to the sheriff ” of the county in which the defendant resides, if “ followed within sixty days after the expiration of the time limited for the actual commencement of the action by personal service ” of the summons, or by the first publication thereof as against that defendant pursuant to an order of service upon him in that manner.

It is apparent from the several sections to which we have alluded that the legislature intended that whether a cause of action should be deemed barred by limitation of time should be dependent upon the actual commencment of the action and not upon the manner in which the summons should be served.

How this action was duly commenced within the time prescribed by § 399, by a substituted service of the summons in accordance with the requirements of §§ 435,436 and 437, and these sections, forming as they do a part of the same statute, must be construed together. Section 437 provides that in the case of a substituted service of a summons “ the same proceedings may be taken thereupon as if it had been served by publication.” These two methods of service are thus pronounced to be of equal force in the support which they give to the proceedings based thereon. Bach may therefore be regarded as the equivalent of the other where either method of service is authorized.

In Pomeroy v. Ricketts, 91 N. Y., 668, the defendant appeared generally, and subsequently moved,to discharge an attachment on the ground that personal service of the summons was not made within thirty days after the granting of the warrant, as required by § 638, and this court held that such section must be read with § 424, which provides that the “ voluntary general appearance of the defendant is equivalent to personal service of the summons upon him.”

Following the rule adopted in that case, § 399 must be so read as to entitle a plaintiff to the benefit of that section, where the delivery of the summons is followed within the time therein prescribed by the first publication of the summons pursuant to an order for service in that manner, or by its equivalent, a substituted service of the summons, made pursuant to §§ 435 to 437 inclusive.

The judgment should be affirmed.

All concur, except Potter, J., absent.  