
    FORSTER v. MOORE et al.
    (Supreme Court, General Term, First Department.
    April 14, 1893.)
    Summons—Publication—Concealment within State.
    The mere failure by two different persons, on the same day, to obtain admittance to the apartments occupied by persons on whom summons is sought to be served, is not sufficient to show an intent to avoid service, within the meaning of Code Civil Proc. § 438, subd. 2, authorizing service by publication where one keeps himself concealed within the state with intent to avoid personal service.
    Appeal from special term, New York county.
    Action by Frederick P. Forster against Charles E. Moore, Elizabeth Moore, and others to foreclose a mortgage. From an order denying the motion of defendants Moore, directing service of summons on them by publication, and from an order denying a motion to vacate an order appointing a temporary receiver of the property of defendant Elizabeth Moore, defendants Moore appeal.
    Reversed.
    Argued before VAN BRUNT, P. J., and O’BRIEN, J. -
    Robert J. Robeson, for appellants.
    Forster & Speir, (Henry A. Forster, of counsel,) for respondent.
   PER CURIAM.

If the order directing the services of the summons by publication was improperly granted, then the second order appealed from, appointing a temporary receiver, must necessarily fall, because based upon the validity of the prior order. The single question presented is as to whether the affidavits contain such evidence establishing the facts upon which to form an order of publication. The affidavits were directed towards showing that the defendants were keeping themselves concealed with intent to avoid service upon them of a summons. These affidavits state that on the 25th of February, 1893, two persons attempted to obtain service,— one in the morning, at 9 o’clock, and the other at 11 o’clock of that day,—and upon failure to obtain an entrance into the apartment occupied by the defendants, in which it would appear they then were, a statement was made that they were concealing themselves with intent to evade the service of a summons. It may well be that such affidavits would be sufficient for substituted service under section 435 of the Code, which provides that where a defendant avoids service of a summons, and cannot be served with due diligence, such an order may be granted. But for the purpose of obtaining an order of publication, which requires proof of intent, we think the mere failure to obtain admittance by two different persons on the same day to the apartments occupied by persons upon whom process is sought to be served hardly comes up to the requirements of the Code, of showing an intent on the part of such persons to conceal themselves. In other words, a mere inability to serve process at a particular time is not sufficient to justify an order of publication against defendants, and it is only where evidence is furnished showing such intent that the order should be granted. We think that all that is here shown was mere inability to serve process; and, except the conclusions of the two persons who made the affidavits, there is no evidence which would have justified the court in concluding that the defendants were deliberately concealing themselves with intent to avoid the service of a summons. Although the merits of the action and the conduct of the defendants may be as claimed by the respondent, and sufficient facts were presented to confer jurisdiction upon the judge to act, still we think that, as the only point here is as to the weight to be given to the evidence presented by the affidavits, and having thereupon reached a conclusion contrary to that of the judge below, it follows that both orders must be reversed, with $10 costs and disbursements. 
      
      Code Civil Pioc. § 438, provides: “An order directing ihe service of a summons upon a defendant without the state, or by publication, may be made in either of the following cases: !? * * (2) Where the defendant, being a resident of the state, has departed therefrom with intent to defraud his creditors or to avoid the service of a summons, or keeps himself concealed therein, with like intent.”
     