
    BARNARD against HEYDRICK.
    
      Supreme Court, Second District; Special Term,
    1866.
    Summons.—Printed Subscription.—Service by Publication and Hailing.—Affidavits.—Orders.—Guardian ad Litem.
    A summmons, issued by an attorney with his name printed at the end thereof, is “ subscribed” by him, within the meaning of the provision of the Code of Procedure, which requires the summons to be subscribed .by the plaintiff or his attorney.
    A statute requiring an instrument to be in writing and subscribed, is generally satisfied by a printed instrument, adopted by the parties to be bound thereby.
    An order for publication of summons is not avoided by the fact that an affidavit relied on as showing a material fact on which the order was granted, was made and entitled in another action. It is allowable on such applications to read affidavits that have been used in a different suit.
    
    In an action for the foreclosure of a mortgage, it is sufficient, to entitle the plaintiff for an order allowing service of the summons to be made by publication, to show that the defendant on whom such service is sought to be made cannot, after due diligence, be found in this State. Non-residence need not be proved.
    It is not necessary that an order for publication of summons should state that the affidavits referred to, on which the order was granted, afforded satisfactory evidence of the requisite facts. This may be presumed from the making of the order.
    
    It is not essential that an order requiring service of papers by mail should be filed before the papers are mailed. .The previous deposit in the mail is, at most, an irregularity, amendable at any time, by filing nunc pro tunc.
    
    After an answer has been put in by a guardian ad litem, and judgment entered, the regularity of the service of the order for his appointment cannot be questioned.
    Motion to discharge purchaser at a judicial sale.
    The action was brought by Oyprian S. Barnard, Jr., against Jesse A. Heydrick and others, for the foreclosure of a mortgage ; and, after the judgment and sale, the purchaser objected to various alleged irregularities in the proceedings, and now moved to be discharged from his purchase.
    The facts are stated in the opinion.
    
      Wm. H. Arnoux, for the motion.
    
      Barnard, Rice & Burnett, opposed.
    
      
       Although there are some cases to the contrary (McCoy v. Hyde, 8 Cow., 68; Clickman v. Clickman, 1 N. Y. [1 Comst.], 611; Cutler v. Biggs, 2 Hill, 409; but see Prescott v. Roberts, 6 Cow., 45), the practice sanctioned in the principal case seems, within due limits, to be both reasonable, convenient, and conducive to justice; and it is sustained by Colver v. Van Valen, 6 How. Pr., 102. It is well settled that one affidavit may be entitled, and used, in several causes (Jackson v. Keller, 18 Johns., 310; Boyce v. Thompson, 20 Johns., 274; Schermerhorau. Noble, 1 Den., 682).
    
    
      
       Rule 56 requires that orders granted on petitions shall refer to such petitions by the names and descriptions of the petitioners, and the date of the petitions, if the same be dated, without reciting or setting forth the tenor or substance thereof unnecessarily. This is the better practice in the case of orders founded on affidavits to be filed with the order; though it seems that an order might be regarded as valid, without even containing a recital that any evidence had been presented to the court. People ex rel. Greeley v. Court of Oyer & Terminer, 27 How Pr., 14.
    
   Lott, J.

This is an application on behalf of a purchaser of mortgaged premises, sold under a judgment of foreclosure and sale, to be discharged from his purchase, on the following grounds:

“ I. That the summons is not subscribed by the plaintiff qt Ms attorney.

“ H. That the affidavit on which the order of publication was granted is insufficient, and—

“ HI. That no copy of the order appointing a guardian acl litem, of the non-resident infant defendant was served, according to the terms of the order.”

These grounds will be examined in the order they are above stated.

I. The first objection is based on the fact, appearing by the judgment roll, that the names of the plaintiff’s attorneys, are printed at the end of the summons, forming part of the roll. This, it is claimed, is not a compliance with the requirements of the Code, which provides that “ the summons shall be subscribed by the plaintiff or his attorney,” and shall require the defendant to “ serve a copy of his answer on the person whose name is subscribed to the summons.”

It then becomes necessary to determine whether a summons, issued by an attorney, with his name printed at the end thereof, is subscribed by him within the meaning of that provision.

Two cases were referred to, on the argument of the motion, in which the question has been considered ; and I have been unable, after a careful examination to find any other, and in those, the learned justices who examined it arrived at different conclusions.

The first was the case of The Farmers’ Loan and Trust. Company v. Dickson, reported in 9 Abb. Pr., 61, and also in 17 How. Pr., 477, which was decided by Justice Isgeaham, at special term in the first district. A motion was there made by a purchaser to be relieved from a sale on the ground, among others, that the name of the attorney was printed at the end of the summons, and the learned justice, after considering two other objections that were made at the proceedings, and stating that one-of them could be remedied by filing an affidavit of the service of summons on one of the defendants mme pro tuno, says in relation to that now under consideration: “The summons should have been signed,by the plaintiff or his attorney (§ 128), and the printed name of the attorney was a nullity. As the copy served was correct, the plaintiff might also file a copy properly signed nunc pro timo.”

The other case was that of The Mutual Life Insurance Company v. Ross, reported in a note, at page 260 of lQAbb. Pr.t in which the defendant moved to set aside the summons, served upon him, on the ground that the name of the plaintiff’s attorney was printed at the end thereof. On the argument of that motion, the decision of Judge Isqbaham was referred to, and commented upon, by counsel, and the report of the case closes with saying that E. D. Smith, J., after consideration denied the motion, with costs, upon the ground that a printed subscription is a substantial compliance with the statute,.and the objection was technical, and if there was a defect, it was immaterial.”

Neither of these learned justices appears to have assigned the reasons for the conclusion at which he arrived. I am, therefore, obliged to examine the question, embarrassed by their difference of opinion, without the benefit of the aid which those reasons would have afforded. In doing this, it may be useful to ascertan the scope and extent of the decision of Justice Iugbaham. He treats the words “ subscribe ” and sign ” as synonymous : and when he says that the summons should have been signed by the plaintiff or his attorney, and that the printed name of the attorney'was a nullity, he clearly indicates that such signature should have been in the proper handwriting of such attorney. If this was his meaning, he was, in my opinion, mistaken. Previous to the adoption of the Code, it was provided by the Revised Statutes (2 Rev. Stat. 278, § 9) that all writs and process issued out of any court of record, should, before the delivery of the same to any officer to be' executed, be subscribed or endorsed with the name of the attorney, solicitor "or other person ” by whom the same was issued; and yet in the same title at page 286, § 70, it is declared that “ if any attorney or solicitor, shall knowingly permit any person, not being his general law partner, or a clerk in his office, to sue out any process, or to prosecute or defend any action in his name, such attorney and solicitor, and every person who shall so use the name of any attorney or solicitor, shall severally forfeit to the person against whom such process shall have been sued out, or such action prosecuted or defended, the sum of fifty dollars.”

This last provision is still in force, and by exempting the general law partner and the clerks of an attorney from the penalty imposed for using his name in issuing process, and prosecuting and defending actions, it is clearly implied that it may he so used by them by his permission and authority.

Although the Revised Statutes provide that the process “ shall be subscribed or indorsed with the name of the attorney, solicitor, or other person ” issuing the same, and the requirement of the Code is, that the summons shall be subscribed by the plaintiff or his attorney, the difference in the phraseology does not in my opinion justify the conclusion that a difference in practice was intended.

It will be observed that the use, by a clerk, of the attorney’s name, appears to be authorized under the provision above referred to, in actions in which the attorney himself has no interest or connection ; and it has, I believe, been the general practice of attorneys to allow a clerk in their office to sign their name to process issued by them. The authority given to the clerk by the attorney, in such” a case, makes it his act, and he is responsible therefor to the court and the party proceeded against; and I have found no case where the practice has been called in question. There certainly appears no reason in principle why it should not be permitted. There are many instruments which the law requires to be subscribed or signed by the party to be bound thereby, and yet a subscription, or signature by him personally is not necessary. Thus, the statute regulating the execution of wills, after expressly providing that every will shall be subscribed by the testator,” recognizes a signing of his name by another person as a compliance with that provision, by a subsequent requirement that every person who shall sign the testator’s name to any will by his direction shall write his own name as a witness to the willand it was distinctly decided in Robins v. Coryell (27 Barb., 556) after a full and careful examination of the question, that the writing of the testator’s name to á will by another person, re his presence and by his direction, is a subscription by hw, within the meaning of that statute; and an opinion to the seme effect is expressed by Chancellor Walworth in Chaffee v. Baptist Missionary Convention (10 Paige, 91), and by Hand, J., in Butler v. Benson (1 Barb., 533). So the statute of /lauds, requiring certain agreements to be in writing, and to be signed or subscribed by the party to be charged therewith, is satisfied by the signature or subscription of the name of such party thereto by another person duly authorized to make it.

If such is the rule applicable to statutes in the case of wills and other written instruments requiring the subscription of parties, I am unable to discover any reason why a different construction should be given to that in relation to legal process. The views thus presented lead us to the conclusion that a subscription of the name of an attorney issuing a summons is not required to be made by himself personally, but that it may be made by another with his authority ; and assuming this to be correct, it seems to follow that his name may be printed, as a substitute for his written signature. A party may in the ordinary transactions of business become bound by any mark or designation he thinks proper to adopt and use for his name. It was decided in Brown v. The Butchers’ & Drovers’ Bank (6 Hill, 443), that Brown was liable as endorser by an endorsement of the figures “ 1, 2, 8,” made by him in lead pencil, no name being written thereon, it also appearing that he could write. In that case the court instructed the jury that if they believed the figures were made by Brown, as a substitute for his proper name, intending thereby to bind himself as endorser, he was liable; and this ruling was sustained on review. So it has been held by the general term in this district in the case of the Mechanics’ Bank against Sullivan, heard in December, 18C2 (but not reported, I believe), that a notice of the protest of a note, sent to an endorser by a notary with his name printed at the end of it, was sufficient

It is a common practice for a person who is unable to write his name to make his mark; and the making of such mark is held to be a good signing or subscription, within the requirements of the law, by a testator to a will (Baber v. Deming, 8 Adolphus & Ellis, 94; Jackspn v. Van Dusen, 5 Johns., 144; Chaffee v. The Baptist Missionary Convention, 10 Paige, 85).

In the case of Baker v. Deming, above cited, the court refused to permit an inquiry whether the person making his mark could write or not, adopting the rule that the requisite of signing by the statute of frauds was satisfied by the mark of the devisor, irrespective of his ability to write.

Under our statute it is required that a subscribing witness “ shall sign his name as a witness and it was claimed in the case of Morris v. Kniffen (37 Barb., 336) among other things, “ that a marksman cannot be and is not a subscribing witness within the meaning of the statute ;” but the supreme court at general term in the third district (Justice Hogeboom giving the opinion), held, that where a witness makes his mark instead of writing his name, it is still a signing of his name, or subscription, within the meaning of the statute; and he refers with approbation to the decision by Surrogate Bradford, in the case of Meehan v. Rourke (2 Bradf., 385), where he discusses the question, and concludes that such a mode of attestation was a sufficient compliance with the statute (See also Jackson v. Van Dusen, supra).

So it was held by the lord-chancellor in England, in Harrison v. Harrison (8 Ves., 185), that a will was sufficiently executed where one witness only subscribed his name, and the two others attested it “ by setting their marks respectively,” and in that case it was shown that there had been a great many cases when it had been held to be sufficient for a marksman ” to be a witness (See also Addy v. Grix, 8 Id., 504).

It appears also to be settled that where a person is in the habit of using documents with his name printed thereon, this will be his signature within the meaning of the statute of frauds (2 Parson on Contracts, 289; see also Sanderson v. Jackson, 2 Bos. & P., 238; and Schneider v. Norris, 2 M. & S., 286). In the last case Le Blatstc, J., said, “ Suppose the defendant had stamped the bill of parcels with his own name, would not that have been sufficient? Such a stamping, as it seems to me, if required to be done by the party himself, or by his authority, would afford the same protection as signing.”

There are also many cases where printing is substituted for writing, in instruments which under our statute are required to be in writing. It is the general practice for deeds or conveyances of real estate, and bills of sale of personal property to be printed, and it is very common to use printed agreements for the sale of both real and personal estate, and their validity is conceded; yet the statute declares that all conveyances of land, and all contracts for the sale of lands, or a note, or memorandum thereof, shall be in writing, subscribed by the party by whom the conveyance or sale is made, and also makes it necessary for a note or memorandum of every contract for a sale of goods, when the price thereof is fifty dolla s or more, to be in writing, except in cases of part payment of the purchase money, or delivery of part of the goods (See 2 Rev. Stat., 134, § 6, 135, § 8, 136, § 3).

Assuming, then, that such instruments, when printed, are “ in writing ” within the requirements of these provisions of the statute, is there any good reason why printing an attorney’s name, may not be permitted as and for his signature to a summons or other legal process. In this connection I will refer to the fact that the Code provides for the service of a summons on a defendant by delivering a copy thereof, without the necessity of showing him the original (§ 134); and also authorizes a copy to be inserted in the judgment roll (§ 281). This appears to me a material fact in determining the question now under consideration. It is by the service of the summons that the action is commenced, and jurisdiction over the party is acquired ; and if the service of a printed copy (for there is nothing to prohibit such a copy) is sufficient for that purpose, and such a copy may properly form a part of the judgment roll, there is no valid reason for requiring the paper spoken of, and denominated as the summons (but which may never be filed, but be forever kept in the pigeon holes of an attorney’s desk), to be subscribed with the written name of the attorney, and for holding a printed subscription to be a nullity.

The name of the attorney issuing the summons is as effectually disclosed when it is printed, as if it were written; and his responsibility to the defendant and to the court, in either case, is the same. It would be necessary in any proceeding against him; to show that he was in fact the attorney issuing the process, and although there might be more difficulty in making that proof when his name was printed than there would be if it were written by himself or by another with his authority, that difficulty exists in all cases of agency, and is not sufficient, on the ground of public policy, or of any inconvenience to suitors, to require a different or a more stringent rule in case of legal process than in any other case affecting the private rights of individuals.

The different considerations above presented, lead me to the conclusion that the summons in this case was subscribed within the requirements of the Code, and that the first ground of objection to the proceeding .is, consequently, not well taken.

II. The second objection involves the sufficiency of the affidavit on which the order of publication was granted.

It appears by the judgment roll, that the order purports to have been founded on an affidavit, entitled in this action, made by David B. Burnett, one of the plaintiff’s attorneys, and on another made by Jeremiah Johnson, Jr., in a different action against the defendants in this, commenced by E. Burtis Brainard as plaintiff. The affidavit of Hi*. Burnett, after setting forth the nature of the action, and showing that all of the'defendants proceeded against as absentees are proper parties, states “that the said defendants are, as deponent is informed and believes, non-residents of this State, and are now absent therefrom, and cannot with due diligence be served with summons herein; that, as deponent is informed, the defendants, Jesse A. Heydrick, Elizabeth Heydrick, and-Heydrick, reside at Franklin, in the State of Pennsylvania, and that the defendants, Charles H. Heydrick, and Anne his wife, reside at Utica, in the said State of Pennsylvania.” This was verified on the 18th day of May, 1866. The affidavit of Mi*. Johnson was made on the seventh day of the said month of May. He stated positively as a fact, that the said defendants, at that time, were non-residents of this State, and resided at the place mentioned in the affidavit of Mr. Burnett. It is claimed on behalf of the purchaser, that Mr. Johnson’s affidavit being entitled in a different suit, could not be used in this. In that, I think, he is mistaken. The Code requires that it shall appear “ by affidavit, to the satisfaction of the court or a judge granting the order, that the person on whom the service of the summons is to be made, cannot, after due diligence, be found in this State,” and I see no good reason why that may not be shown by an affidavit properly made, and forming a part of the records of the court, although not in the particular action in which the order is asked. That may, in many cases, afford more satisfactory evidence of the fact, than any proof that could otherwise be .obtained. It appears to be the practice in England, to read affidavits in one suit, that have been used in another, on certain applications (see Langston v. Wetherell, 14 Mees. & W., 104); and I am of opinion it is allowable on an application for orders of publication, and of a like nature. The objection to it appears to be a matter of form merely, and not of substance.

I shall, therefore, hold that the affidavit of Hr. Johnson was properly before the court, and that it, with the facts stated positively by Hr. Burnett, authorized the order.

In so holding, I agree with the counsel of the purchaser, that the allegation made by Hr. Burnett, on information and belief merely, is not evidence; but the absence of the defendants from the State, is, as I understand his affidavit, positively stated by him; and that is a fact which affords at least some proof that they could not be served therein, with the summons. This case being an action for the foreclosure of a mortgage, the non-residence of the defendants was not necessary to be shown. It was sufficient to establish the fact satisfactorily, that they could not, after due diligence, be found within this State, so as to enable the plaintiff to effect the service of the summons on them, and that the case came (as it clearly did) within the fom’th subdivision of section 135, which is distinct from the . third subdivision, having reference to non-residents of this State.

It is to be presumed, from the fact of making the order, that the affidavits recited therein afforded satisfactory evidence to the court of those requisites, and the omission so to state in the order does not affect its validity.

I am therefore of opinion, that the second ground of objection to the proceedings is not well founded.

III. The third objection is based on the fact, that a copy of . the order nisi appointing the guardian ad litem of the nonresident infant defendant, was deposited in the post office two days before the order and the affidavits on which it was founded, were filed.

It appears, however, that the order was made on the day of the deposit, and the omission to file it until a subsequent day does not invalidate the proceeding.

According to our present practice, an order and the affidavits on which it was founded, must, in many cases, be taken to a distant county, and it is often impossible to file them in the proper office, on the same, day the order is made. That, however, is effectual, when filed, from the time it is granted.

The previous deposit is, at most, an irregularity that can be remedied at any time, by filing the order nunc pro tuno. This, however, is not necessary. No guardian was ever appointed, on the application of the infant, or of any relation on his behalf, and the original order nisi became effectual. The original appointment of the guardian, has, moreover, been confirmed by the court.

An answer was put in by him for the infant, and judgment has been entered. Under such a state of facts, the regularity of the appointment of the guardian cannot now be questioned (Rogers v. McLean, 31 How. Pr., 279).

It follows that the last ground on which the purchaser asks relief, is not available for that purpose.

I am thus, after a full consideration, brought to the conclusion that the application of the purchaser must be denied.  