
    Joseph J. Meaney, Respondent, v. John T. Way, as Trustee, etc., of Thomas P. Way, Deceased, Appellant, Impleaded with John Renehan, Defendant.
    
      Specific performance—contract by a testamentary trustee to sell land to one person which the trustee subsequently conveys to another — service of the summons by publication.
    
    Where a- non-resident testamentary trustee, after making a. contract to sell land located in the State of New York to one party, from whom he receives a portion of the contract price, conveys the. property to a third party who has knowledge of the contract of sale, the contract vendee may maintain an action against the non-resident trustee and his grantee to compel specific performance of the contract of sale.
    Upon an appeal from an order denying the trustee’s application to vacate an order for the service of the summons upon him by publication, the question whether such service of the summons would confer jurisdiction upon the court to compel the non-resident trustee to convey the land will not be considered.
    • Appeal by the defendant, John T. Way, as trustee, etc., .of Thomas P. Way,'deceased,, from an order of the Supreme Court,, made at the .New York Special Term and entered in the office of the clerk of the county of New. York on the 14th day of Septen> her, 1905, denying his motion to vacate an order for the service of the summons herein by publication.
    
      M. A. Kursheedt, for the appellant.
    
      Phineas Lewinson, for the respondent.
   ' Patterson, J.:

It appears by the complaint in this action that John T. Way, as trustee of the trusts created under the will of Thomas P. Way, entered into a contract for the sale of land to the plaintiff and received at the time the contract was made $1,000 from the plaintiff. It further - appears that, at the time named for the completion of the transaction, the plaintiff attended at the place appointed and offered to comply with the other terms of the contract. The time set for closing the transaction was the 29th of April, 1904. On the 7th of April, 1904, John T. Way conveyed the premises tó one John Renehan. It is further alleged that Renehan had knowledge of the agreement between John T. Way, and the plaintiff, and the action was brought for specific performance of the contract. Way, trustee, and Renehan being made parties defendant. John T. Way, the trustee, is a nonresident of the State of New York, and an application was made, upon due proof of his non-residence consisting of several affidavits and also of a certificate of the sheriff of the county of New York that he had made unavailing efforts to find John T. Way, to serve the summons by publication, and an order of publication was duly made. John T. Way specially appeared and moved to set aside the order of publication, upon three grounds, that the complaint does not show a sufficient cause of action against the defendant Way to be served with the summons by publication; second, that the affidavits on which, the order of August 11, 1905, was granted are insufficient to warrant the making of an order for the service of the summons by publication on the defendant Way; third, the service of the summons by publication does not confer jurisdiction upon the court to compel a non-resident to convey real estate located within this State.

As to the first objection, it is apparent that the complaint does show a sufficient cause of action against Way, trustee. The action is for the specific performance of a contract. The intimation is that no cause of action is alleged against the defendant Way because it appears from the complaint that he has conveyed the property to the defendant Benehan, but it also appears that Benehan took his conveyance with full knowledge. It is competent for the court in this action to set aside the conveyance to Benehan, which would then leave an outstanding question between Way and the plaintiff as to the plaintiff’s right to have specific enforcement of the contract as against Way.

As to the second objection, there is no support for the claim. The affidavits upon which the order of publication was granted were sufficient to authorize the court in the exercise of its judicial discretion tp grant the order.

As to the third point, that the service of the summons by publication does not confer jurisdiction upon the court to compel a nonresident to convey real estate situated within this State, that is not a subject to be mooted on this application. The question is simply as to the sufficiency of the evidence before the court to make an order of publication of a summons in an action in which, in view of all the circumstances of the case, a judgment may be rendered affecting real estate within the State and in which a judgment maybe obtained against John T. Way to return the $1,000 which had been paid to him on this contract. While the action is in form one for specific performance, yet at the samé time, if for reasons appearing either from the complaint or otherwise, the court shall be satisfied that -specific performance cannot be decreed, it would be within its power to compel the restitution of this $1,000. We are not to consider now the sufficiency of the complaint as upon a. demurrer or what might be the result of a trial, but simply as to the non-residence of John T. Way. The court ibelow'was fight in directing the summons to be published and I .think the -order should be affirmed, with costs.

O’Brien, P. J., Ingraham and Clarke, JJ., concurred; Laughlin, J., concurred in result.

■ Order affirmed, With costs.  