
    Virginia E. Ver Planck, Plaintiff, v. Mary A. Godfrey et al., Defendants.
    (Supreme Court, New York Special Term,
    March, 1900.)
    Foreclosure — Order of publication, directing copies of the summons to be deposited “ in the general post-office ” at New York, void — Code C. P., § 440.
    An order of publication, in foreclosure, having the "caption “ Supreme Court, State of New York”, dated “New York, December 21, 1899”, and directing that copies of the summons should be deposited “ in the general post-office” is defective and should be vacated, as there are a number of general post-offices in the consolidated city of New York and no “ specified post-office ” (Code C. P., § 440) can be said to have been designated in the order.
    Motion to vacate an order of publication in an action of foreclosure.
    Wyatt & Trimble, for plaintiff.
    Alden & Carpenter, for defendant Godfrey.
   Leventbitt, J.

The action is to foreclose a mortgage and application is made to vacate an order of publication. While the allegations tending to show the inability with due diligence to make personal service of the summons are intrinsically weak and are fairly open to the criticism that the efforts made disclose a failure to follow up the ordinary channels pursued in order to obtain information, the more serious defect is a noneompliance with section 440 of the Code of Civil Procedure in that the post-office in which the copies are directed to be deposited is not specified in the order. The order provides that “ plaintiff deposit in the general post-office three sets of copies.” The caption of the order reads “ Supreme Court, State of New York,” and it is dated “ New York, December 21, 1899.” The old Code required merely that the order direct the copies be deposited in the post-office.” § 135. The Code of Civil Procedure requires the order to direct a specified post-office ” (§ 440), and it has been held in several instances that the omission to specify constituted a fatal jurisdictional defect. Eleventh Ward Bank v. Powers, 43 App. Div. 178; McCool v. Boller, 14 Hun, 73; Walter v. DeGraaf, 19 Abb. N. C. 406; Smith v. Wells, 69 N. Y. 600. The use of the words “ general post-office ” is not, in my opinion, a sufficient compliance with the Code provision. The order is equally defective whether we regard the required designation as referring to a differentiation into general and branch offices, or, as is more proper, referring to the locality in which the office is situated from which the mailing is to take place. There are a number of “ general ” post-offices in the present consolidated city of New York, and no locality whatsoever is designated. As the Code, of course, applies to the whole State, to hamlets and villages where there is merely a single post-office as well as to the large cities where there are many, it seems evident that the territorial locality was intended to be designated under the requirement of a specified post-office. The motion to vacate the order of publication must be granted, with ten dollars costs.

Notion granted, with ten dollars costs.  