
    Emma L. Stanton, Plaintiff, v. Ruth L. Eastman et al., Defendants.
    (Supreme Court, Niagara Special Term,
    May, 1909.)
    Process — Service — Service by publication—Affidavit for publication — Showing diligence.
    The provisions of section 439 of the Code of Civil Procedure, requiring, as one of the conditions of granting an order directing the service of a summons by publication, where the application for such order is made upon the ground that the defendant is a nonresident, proof that the plaintiff has been or will be unable, with due diligence, to make personal service of the summons, are satisfied by proof of the residence of the defendant in another State not adjoining the State of New York.
    
      Motiokt to compel purchaser on partition sale to complete purchase.
    George F. Thompson, for plaintiff.
    Abner T. Hopkins, for purchaser.
   Pound, J.

This is an action in partition. The purchaser at the referee’s sale under the interlocutory judgment objects to the title tendered, on the ground that it is not marketable. Plaintiff obtained ah order for service of the summons upon non-resident defendants, on an affidavit which reads as follows:

“ Emma L. Stanton, being duly sworn, says she is the plaintiff in the above entitled action; that the defendant Josephine D. Bobst resides at the City of Toledo, State of Ohio, and that the defendants Walter Lyon, Jessie Lyon and Bertie Lyon reside at San Francisco, California.

“ That deponent knows the residence of said defendants to be as aforesaid, and knows that it will be impossible to serve the summons and complaint upon the said defendants personally within the State of Hew York, and that therefore an order of publication or for service without the State will necessarily have to be made by this court in order to permit service upon said defendants above named.”

It does not otherwise appear that plaintiff “ has been or will be unable with due diligence to make personal service of the summons ” on the non-residents, as required by Code Civil Procedure, section 439. The purchaser maintains that no evidence was presented to the justice who made the order which authorized a judicial determination that plaintiff would be unable with due diligence to make personal service in this State, and that the service is, therefore, incomplete. If the affidavit is insufficient to confer jurisdiction upon the justice to make the order, the purchaser is justified in refusing to' complete his purchase j but, if it contains any evidence, however inconclusive, having a legal tendency to show compliance with the statute, warranting the exercise of judgment and a determination of the fact of absence from the State, the order will be protected, at least from collateral attack after the entry of judgment. Kennedy v. Lamb, 182 N. Y. 228.

Under the old Code of Procedure, section 135, it was necessary to show that the non-resident cannot, after due diligence, be found within the state.” The section of the Code of Civil Procedure (section 439) now in force requires either due effort to serve or sufficient reasons for not making the effort.

Under the old Code the decisions of the Court of Appeals are not wholly harmonious.

In Kennedy v. New York L. Ins. & Trust Co., 101 N. Y. 487, decided in 1886, the non-resident defendants resided in Baltimore, in the State of Maryland. The affidavit went no further than the one before us in this case, alleging merely non-residence; but it was held sufficient to give this court jurisdiction and to sustain the order against collateral attack. The judge was permitted to infer from residence in Maryland that defendant could not be found in New York.

I am unable-to harmonize the Kennedy case with either the earlier case of Carleton v. Carleton, 85 N. Y. 313, or the later case of McCracken v. Flanagan, 127 id. 493, both of which hold that mere averments of non-residence, coupled with the conclusion that the defendants cannot be found within the State, are insufficient, and that some degree of diligence must be actually exercised to make service within the State, unless strong and positive proof is' furnished that the defendant is not only a non-resident, but actually living without the State, so that due diligence would be unavailing.

In the Carleton case the defendant resided in California; and that case is controlling here, unless modified by later decisions.

In Kennedy v. Lamb, 182 N. Y. 228, it is held that mere proof of residence in a State bordering on this State, with no proof of effort made to find or serve within this State, and no reason given why such effort, if made, would be useless, is not sufficient to confer jurisdiction to make the order of publication.

The court takes notice of the fact that many residents of Hew Jersey come to Hew York frequently for business and pleasure and holds that residence in Hew Jersey is not in the slightest degree inconsistent with daily presence in Hew York; but it declines to say that mere proof of residence in a State as far from Hew York as Maryland does not permit the inference that the person to be served cannot be found in this State. It carefully holds, merely, that such inference is not permissible simply from proof of residence in an adjoining State, and reserves the question of the effect of proof of residence in more distant States and foreign countries.

The Appellate Division in the Second Department has recently held that proof of residence in Iowa is sufficient, in itself, to justify the conclusion that service cannot be made in Hew York, because Iowa is so remote a locality that the judge might legitimately conclude that a resident of that State would not be found in New York. Sunswick Land Co. v. Murdock, 129 App. Div. 579.

This decision upholds the order before the court on this motion, so far as the non-resident Californians are concerned.

It was stated on the argument that the title does not depend upon the validity of the service on the defendant resident in Ohio.

Why one should infer absence from Hew York from residence in Ohio, or even in California, is not apparent at first glance. Ohio is neither an adjoining State nor, geographically, a distant locality; but, if a line is to be drawn between adjoining States and distant States and, if Maryland is to be deemed a distant .State, it would seem that Ohio might be deemed remote, and not as a place of residence for many persons frequently in Hew York, for the purposes of sustaining this order on this motion.

Held that the affidavit was sufficient, and that the purchaser must complete his purchase.

Ordered accordingly.  