
    Jessie J. K. Westbrook and Francis A. Westbrook, as Trustees under the Will of Harriet R Westbrook, Deceased, Respondents, v. William P. Ward, Doing Business under the Firm Name of P. H. Drake & Company and also under the Name of Lyon Manufacturing Company, Appellant.
    Second Department,
    March 10, 1916.
    Process — action against non-resident—service of summons by
    publication.
    Where, in an action against a non-resident to recover for royalties upon sales, no attachment has been issued against the property of the defendant, and the complaint does not state facts upon which the court could render judgment “that the defendant be excluded from a vested or contingent interest in or lien upon specific real or personal property within the State; or that such an interest or lien in favor of either party he enforced, regulated, defined or limited; or otherwise affecting the title to such property,” an order directing the service of the summons upon the defendant by publication should be vacated.
    Appeal hy the defendant, William P. Ward, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 8th day of December, 1915.
    
      Edwin D. Worcester, for the appellant.
    
      Joseph A. Burdeau, for the respondents.
   Per Curiam:

The appeal is from an order denying a motion to vacate an order directing the service of the summons upon the defendant hy publication. . The defendant is not a resident of the State. He appeared specially for the sole purpose of making the motion. No attachment has been issued against the property of the defendant. The demand for judgment is reproduced from the complaint:

Wherefore, plaintiffs demand judgment as follows:

“ First. That an accounting be had between the parties hereto.
££ Second. That the defendant be compelled to discover and disclose to plaintiffs any and all facts in any way relating to or affecting the manufacture and sale of said Mexican Mustang liniment.
11 Third. That the said clause of said contract, schedule £ A,’ mentioned and set forth in paragraph fifteenth of this complaint be judicially interpreted and construed.
Fourth. That the interest of the plaintiffs under the terms of the contracts set forth herein be defined and enforced.
‘‘ Fifth. That it be adjudged that defendant shall specifically perform said contracts, schedules ‘A’ and £B,’ and in default thereof that damages for said default be awarded to plaintiffs.
u Sixth. That plaintiffs have judgment for any sum or sums of money which may be found due them on an accounting between the parties, or which may be found due them by reason of any neglect or omission on the part of the defendant in the management of the manufacture and sale of said Mexican Mustang liniment.
££ Seventh. That plaintiffs have such other and further and general relief in the premises, as to the court may seem just.”

The subject-matter is a claim for royalty upon the sales of a proprietary medicine, payments to be made annually. The plaintiffs claim they should have had more money than was remitted to them for the fiscal year ending July, 1914, although they allege in their complaint no tortious wrong or breach of contract. The complaint does not state facts upon which the court could render judgment ££ that the defendant be excluded from a vested or contingent interest in or lien upon specific real or personal property within the State; or that such an interest or lien in favor of either party be enforced, regulated, defined, or limited; or otherwise affecting the title to such property. ” The complaint states no cause of action against a non-resident of which the courts of this State could take cognizance without acquiring jurisdiction of his person by his voluntary appearance or by personal service of the summons upon him within the State. (Code Civ. Proc. §§ 438, 439; Pennoyer v. Neff, 95 U. S. 714, 727; Bryan v. University Pub. Co. of N. Y., 112 N. Y. 382; Ward v. Boyce, 152 id. 191, 196; Von Hesse v. Mackaye, 55 Hun, 365; affd., 121 N. Y. 694.)

The part of the order denying defendant’s motion should be reversed, with ten dollars costs and disbursements, and the defendant’s motion granted, with costs.

Jerks, P. J., Thomas, Stapleton and Mills, JJ., concurred; Putnam, J., not voting.

Order in so far as it denies defendant’s motion reversed, with ten dollars costs and disbursements, and defendant’s motion granted, with costs.  