
    NAGLE v. TAGGART.
    
      N. Y. Supreme Court, Second Department; Special Term,
    
    
      December, 1877.
    Foreclosure or Mortgages.—Substituted Service.—Husband and Wire.—Code or Civ. Pro. § 435.
    In the foreclosure of a mortgage, made by a husband and wife on the husband’s land, to secure a husband’s debt, service upon the husband is good service on both him and his wife.
    
    Sufficiency of affidavit to obtain order for substituted service under section 435 of Code of Civ. Pro.
    Motion to compel purchaser at a foreclose sale to complete purchase.
    This action was brought by Sarah Jane Nagle, against James Taggart and Mary.P. Taggart his wife, to foreclose a mortgage, made by the defendants on the husband’s land to the plaintiff, to secure the payment to her by said James Taggart of a life annuity.
    Upon the affidavit of a deputy sheriff of Kings county, an order was made directing a substituted service of the summons and copy of the complaint, and an order appointing a receiver of the rents and profits of the mortgaged premises, with an order to show cause why the said appointment should not be continued upon the defendant James Taggart. Attached to the aforesaid affidavit were other affidavits by parties who had attempted to make a personal service of the process and papers upon Taggart. The service was made in accordance with the terms of the order, which it was not claimed was not pursuant to the statute.
    The affidavit of the deputy sheriff, upon which the order was made, stated .that the defendant, James Taggart, was a resident of the State of New York, and that his place of residence was in the city of Brooklyn ; that the summons, copy of the complaint, order appointing a receiver, and order to show cause why such appointment should not be continued were placed in his hands to serve upon the defendant; that the deponent used all proper and diligent means and efforts to serve the said papers, by continuously and repeatedly endeavoring to find the said defendant, and by visiting the various places which he was accustomed to frequent; that on several occasions deponent called at the said defendant’s residence, but was told by the persons in charge that he was not at home, and that they did not know when he would be at home ; that the deponent could not ascertain when he would be at home though he made diligent inquiry, and that he could not be found either within or without the State ; and that deponent believed that he kept himself concealed, so that the summons could not be personally served.
    Another affidavit showed that said defendant was neither a soldier nor sailor.
    The defendant Mary P. Taggart was not served, and no personal claim was made against her. Judgment was entered upon default, and the mortgaged premises sold by the sheriff of Kings county.
    At the sale, the premises were struck down to John B. Wade. He afterwards refused to complete his purchase, claiming that the foreclosure proceedings were irregular: 1. Because Mary P. Taggart was not served with a summons, and did not appear.in the action; and, 2. Because the affidavit of the deputy sheriff was insufficient to warrant the making an order for substituted service upon James Taggart, as he did not show what efforts he used to find him, but merely said he used proper and diligent means, following the exact words of the statute : “ that although he said that on several occasions he called at defendant’s residence, &c.,” he did not say for what purpose he called there, nor when, whether before or after receipt of the papers for service ; that he did not swear what places he visited in order to find said defendant, nor that he made any inquiries at his house as to where defendant was to be found.
    
      Michael H. Cardozo (Billings & Cardozo, attorneys), for the motion.
    I. It was not necessary to serve Mary P. Taggart, for she being the wife of James Taggart, and jurisdiction having been obtained over him, he was bound to appear for both, and on his 'failure so to do judgment by default could be properly taken against both. The inchoate right’of dower of a wife is a mere incident of the husband’s estate, and service upon him concludes her right. Under the old practice, it was repeatedly held, that where a subpoena was issued against husband and wife, the former was bound to appear and answer for both, except when relief was sought against her separate estate, when it became necessary to serve her with process (Ferguson v. Smith, 2 Johns. Ch. 139 ; Leavitt v. Cruger, 1 Paige, 421); nor has the rule been changed by the Code (Eckerson v. Vollmer, 11 How. Pr. 42; Foote v. Lathrop, 53 Barb. 183 ; affi’d in 41 N. Y. 358 ; White v. Coulter, 3 N. Y. Sup’m. Ct. [T. & C.] 608; Watson v. Church, 5 Id. 243).
    II. The affidavit of the deputy sheriff was sufficient to authorize the justice to grant the order. The other affidavits may be disregarded, as the statute requires the judge to whom the application is made, to be satisfied from the affidavit of the deputy sheriff, before issuing the. order (L. 1863, c. 511; L. 1853, c. 212; Carter v. Youngs, 42 N. Y. Super. Ct. [.J. & S.] 169; Simpson v. Burch, 4 Hun, 315; Baker Stephens, 10 Abb. Pr. N. S. 1; Collins v. Ryan, 32 Barb. 647).
    
      
      D. S. Ritterband, opposed.
    I. The right of dower of Mrs. Taggart was not affected by the decree in foreclosure. (a) The mortgagor’s wife is a necessary party in an action to foreclose, in order to bar her dower and secure her interest in the surplus (Mills v. Van Voorhis, 20 N. Y. 421; S. C., 10 Abb. Pr. 153; Denton v. Nanny, 8 Barb. 623; Hitchcock v. Harrington, 6 Johns. 290; Collins v. Torry, 7 Id. 278 ; Wilkinson v. Parish, 3 Paige, 653). (b) A person named as defendant in the complaint, but not served with process, is not a party to the action (Robinson v. Frost, 14 Barb. 540; East River Bank v. Cutting, 1 Bosw. 636; Code of Pro. § 134; Code of Civ. Pro. § 426). The chancery practice requiring a husband to appear for himself and wife has been abrogated by the Code. The cases of Watson v. Church, White v. Coulter, and Foote v. Lathrop, were cases of foreclosure of purchase money mortgages, wherein a different rule prevails, growing out of the special rules of law governing vendor’s lien.
    II. The affidavit was insufficient because the allegations relating to efforts made to serve defendant Taggart, are too general (Code of Civ. Pro. § 435).
    III. The order for substituted service does not recite that from the affidavit of the deputy sheriff alone it appeared satisfactorily to the court that this was a case in which such an order should be made.
    
      
       Compare White v. Coulter, 59 N. Y. 629; rev’g in part, 1 Hun, 357; S. C., 3 Supreme Ct. (T. & C.) 608.
    
   GILBERT, J.

Motion granted. Service on the husband was good service on both him and his wife (1 Waite's Pr. 511). The affidavit on which the order for substituted service was made was sufficient to authorize the judge to act.  