
    WARREN a. TIFFANY.
    
      Supreme Court, Seventh District;
    
    
      Special Term, September, 1858.
    Service by Publication.—Requisites of Affidavit.—Omission to issue Attachment.
    An affidavit to obtain an order for service of summons by publication, showing that the defendant is a resident of the State, and that the deponent is informed that he is absent from the State, and that he believes that he is absent for the purpose of defrauding his creditors, without showing grounds for that belief, is insufficient; and an order granted on such an affidavit is irregular, and it and all subsequent proceedings should be set aside on motion.
    
      That the order for publication did not direct that a copy of the summons and complaint be mailed, is likewise a fatal irregularity.
    The plaintiff’s omission to issue an attachment against the property of a defendant, in an action commenced in such manner, is a ground for setting aside the judgment.
    
      Motion to set aside order for service of summons by publication, and all subsequent proceedings.
    The action was on a promissory note. The plaintiff proceeded by publication of summons, and entered judgment, which the defendant now moved to set aside for irregularity. The facts relative to the proceedings are stated in the opinion.
    
      Mr. Gardner, for the motion.
    
      S. Gooding, opposed.
    
      
       Rathbone a. Clarke (Supreme Court; Seventh District, Special Term, 1859).— This was an action for the foreclosure of a mortgage on a farm in Monroe county. It was referred to James C. Smith, Esq., and his report, on coming in, was confirmed by the court, E. Darwin Smith, J., and judgment ordered for plaintiff, on the grounds stated by the referee.
      
        Barlow & Olmstead and Mr. Martindale, for the plaintiff.
      
        Charles L. Clarke and Mr. Angle, for the defendants.
      The complaint was filed for the foreclosure of the mortgage in question, dated March 7, 1854, made by the defendant Stebbins and wife, for $2000, to Benjamin Hodge, and by him assigned to the plaintiff, Mrs. Bathbone; and also to set aside, as fraudulent and void, the foreclosure, by advertisement, of a prior mortgage, and the sale of the premises thereunder. The issue was on the validity of this foreclosure by advertisement under the statute, and the proceeding was adjudged fraudulent and void.
      It appeared from the pleadings and testimony that in 1850, a mortgage was duly executed and recorded by Henry Leiter to Conrad B. Lewis on a farm of 120 acres at Clarkson, Monroe county. Leiter sold the farm to Stebbins, who executed a second mortgage to Hodge, which he assigned to the plaintiff, and a third mortgage to A. F. Bartow. Stebbins then conveyed the farm to Mehitabel, the wife of George L. Clarke, in April, 1855. Shortly afterwards George T. Davis took an assignment of the first mortgage from Stephen Merritt, who held it by assignment from Lewis. Merritt had previously agreed with Charles Bartow, the plaintiff’s agent, to extend the time for the payment of the first mortgage till the fall of 1855. But on the personal negotiation of Clarke, who pretended that he was acting in concurrence with Charles Bartow, Merritt was induced to assign the mortgage. There was at that time due on the first mortgage $400.
      The design of foreclosing the first mortgage “ by advertisement,” without giving actual notice to the parties in interest, was then formed by Clarke & Davis. If successful, its result would have been to cut off the second and third mortgages, and, by purchasing at the sale, they could have held the farm discharged of these mortgages.
      This foreclosure was commenced by publishing in the Genesee Evangelist the following notice :
      “ On the 6th day of April, 1850, Henry Leiter executed a mortgage to Conrad B. Lewis on lot three, section three, town four, in the triangular tract in the town of Clarkson, which was recorded in the clerk’s office of Monroe county, and assigned to George T. Davis. There is due on said mortgage, at the date of the first publication of this notice, the sum of 8413.08. The premises described in said mortgage, as above, will be sold at public auction, at the house of B. W. Lawrence, in the village of Churchville, on the 18th day of August next, at 9 o’clock a. ai., agreeably to the statute. Guo. T. Davis.”
      At the time and place mentioned in the notice, the farm was sold to Elisha P. Davis, the father of George, for 8461. It was worth at that time about 85400. Elisha P. Davis subsequently mortgaged the premises, and sold and exchanged the farm in separate parcels. Parties were thus introduced who were apparently strangers to their transactions, and bona fide holders for value. There were various other facts in the case indicating the complicity of Clarke and Elisha and George T. Davis in all these transactions.
      The title of Elisha P. Davis under the foreclosure was made out on the record by filing the usual affidavits. The affidavit of the service of the notice on the parties interested in the second and third mortgages, &c., was made by one Pierce, at that time occupying the same office with Clarke. He stated that, on the 7th July, 1855, he deposited copies of the notice, “ properly folded and inclosed in envelopes, and directed as follows [Then follows nine names, among which are those of “ H. Leiter, Clarkson “ A. F. Bartow, Leroy “ C. Bartow, Leroy,” and “ Benjamin Hodge, Buffalo.”] The affidavit also stated that’the “ notices were directed to each of the above persons, at their respective places of residence, as near as he (Pierce) could ascertain ike same, after diligent inquiry.”
      The affidavit did not state in what post-office the notices were deposited, but Pierce testified on the trial that it was in the post-office at Bochester. The records at the several post-offices were produced, and showed that all the letters mailed at Bochester, eitlier on the 7th of July, 1855, or on the 9th, for Buffalo, Clarkson, and Leroy, were received at those offices respectively. Leiter, Hodge, and the Bartows testified that they did not receive any such notice, though they called at the post-office daily. A notice addressed to Hutter was received at the Clarkson office, but he lived elsewhere, and did not get it. This notice was in an unsealed envelope, post-marked Bochester, July 7, and stamped with a one cent stamp.
      Such notices came within the term “ circular,” as used by the post-office department, and the records kept at the Bochester office showed that on the 7th •July only five circulars were deposited at that office ; of these the notice to Hutter was, of course, one, and it was not questioned that notices were deposited for Mr. and Mrs. Stebbins and Mr. and Mrs. Clarke. Although Pierce’s affidavit was shown to him on the stand, he did not recollect whether the notices were sealed or stamped, nor had he noticed how they were directed. He had no recollection about the condition of one notice more than another ; he made no inquiry as to the places of residence ; nor could he say when, where, or by whom his affidavit was drawn. On these points, the conclusion was, that all the envelopes deposited by Pierce were “ circulars,” like the one to Hutter ; that no circulars were mailed to Leiter, Hodge, or the Bartows, and that the affidavit was false in stating that “ diligent inquiry” had been made.
      Upon these facts it was held:
      
        .First. That no notice of sale was deposited in the post-office directed to either Henry Leiter, Benjamin Hodge, Alfred F. Bártow, or Charles Bartow ; and that the notice was not served on them in any manner ; and that neither they nor the plaintiff had any knowledge of the foreclosure before the sale ; and that this omission rendered the foreclosure utterly void, at least as against the parties not served. ("Van Slyke a. Sheldon, 9 Barb., 278 ; Stanton a. Kline, 16 lb., 9 ; reversed, 1 Kern., 196, but on another point; St. John a. Bumstead, 17 Barb., 100 ; Cole a. Moffitt, 20 lb., 18.)
      
        Second. That the foreclosure of the Leiter mortgage was commenced and carried on with the fraudulent design of cutting off the lien of the holders of the junior mortgages (to the plaintiff and Bartow), without giving them notice of the foreclosure ; and that the defendants Charles L. Clarke, Elisha P. Davis, and George T. Davis were parties to such design, or, at least, had notice thereof before the foreclosure sale ; and that the charge of fraud in the complaint was established.
      
        Third. That the foreclosure was void, because the description of the premises contained in the notice of sale did not conform substantially with that contained in the mortgage, as required by the statute. The notice stated nothing as to quantity, no metes and bounds were given, nor did it appear whether the land was a village lot or a farm. The mortgage stated that the lot was distinguished as lot number three, &c., on “ a map” of the triangular tract, made by B. M. Stoddard, and filed in the county clerk’s office, and that it contains 120 acres of land. The statement of the quantity of land, and the reference to a map filed in a public office, where the precise location could be ascertained, must be regarded as substantial portions of the description. As the notice omits them, it does not comply with the statute, and on account of this defect the foreclosure is utterly void.
      
        Fourth. That the notices deposited in the post-office were not “ properly folded and directed” within the meaning of the statute. The "notices were placed in ordinary envelopes, unsealed, with a cent stamp on each. If the notice itself had been folded, and the direction had been written on'the same piece of paper, so that the direction could not be separated from the notice, the statute would have been literally and substantially complied with. This was probably the mode of directing contemplated by the makers of the law, for at that time letters containing two pieces of paper were charged with double postage, nevertheless, it is not essential that the statute should be literally followed, as to the mode of “folding and directing.” Any mode which is substantially the same is sufficient. But the mode adopted in this case was not substantially the same. There was no direction upon the notice itself—the only direction was upon the envelope. That being unsealed, the notice could easily have been taken out by design, or might have dropped out accidentally, before the envelope reached the place to which it was directed. Since the notice and the direction were on separate pieces of paper, the envelope should have been sealed to satisfy the statute. This mode of service was not authorized by the statute, and the foreclosure is utterly void, at least, as ■against those parties who did not in fact receive the notice.
      Judgments of foreclosure and sale for the plaintiff, and that the foreclosure of the first mortgage was void ; and for costs against Charles L. Clarke, Elisha P. Davis, and George T. Davis.
    
   Welles, J

The action was commenced by publication of the summons, in pursuance of an order of the county judge of ■Ontario county, bearing date May 24tb, 1858. The affidavits upon which the order was made, show that the defendant was at the time a resident of this State, and do not show that such residence was neither known to the party applying for the order, nor could with reasonable diligence be ascertained by him ; but on the contrary, they do show expressly that the defendant’s residence was in the town of Bristol, in the county of Ontario. It appeared by the affidavit of the sheriff, which was presented to the judge when applied to for the order, that after the summons was put into his hands to be served, he went to the defendant’s residence in said town of Bristol, and was then informed by his family and other persons residing near the residence of the defendant, that he had been absent from home ■since about the 1st of November previous, and had not since been home. That when last heard from, he was at the city of Nashville, in the State of Tennessee. The sheriff’s affidavit concludes as follows : “ And that deponent believes that said Tiffany is absent from the State of Hew York for the purpose of defrauding his creditors.” The action was brought to recover the amount of a promissory note made by the defendant. There is nothing in the papers tending to show that the defendant had departed from the State with intent to defraud his creditors, or to avoid the service of summons, or that he kept himself concealed within the State with the like intent, except this extract from the sheriff’s affidavit, which is no evidence whatever. It is not the statement of any fact, but is simply the belief of the sheriff, unsupported by any fact whatever touching the occasion or intent of the defendant’s absence. The affidavits wholly failed, therefore, in showing a case for the order for publication. The order did not direct a copy of the summons and complaint to be deposited in the post-office, directed to the defendant at his place of residence, as required by section 135 of the Code. The motion papers show that no attachment against the property of the defendant has been issued in the action.

The plaintiff proceeded upon the order by publication of the summons for six weeks in the two newspapers designated in the order, after which he procured the usual order of reference, and entered judgment upon the report of the referee for $258.38 damages, with costs of the action.

The order for publication, and all the subsequent proceedings, including the judgment, were clearly irregular, and must be set aside. The affidavits did not show a case for commencing the action by publication, and for that reason the order was unwarranted. In case evidence had been given showing that the defendant’s absence was with intent to defraud his creditors or to avoid the service of a summons, it should have directed a copy of the summons and complaint to be deposited in the post-office, directed to the defendant at his place of residence. The omission to do that was a fatal irregularity. Again, the judgment was irregular in consequence of the plaintiff’s omitting to attach the defendant’s property, as it could in no event affect any property of the defendant, except such as had been taken by virtue of an attachment regularly issued in the action.  