
    Empire City Savings Bank, Respondent, v. Henry G. Silleck, Jr., and Others, Defendants. Moise Geismann, Purchaser, Appellant.
    
      Mortgage foreclosure— order directing service of the summons by publication — when the moving affidavits are insufficient — certificate of a sheriff.
    
    In an action to foreclose a first mortgage upon real property, service was attempted to be made upon one Watson, the holder of a second mortgage, by publication, the order for such service being made upon the theory that Watson was a resident of Canada and that the plaintiff had been or would be unable, in the exercise of due diligence, to make personal service of the summons upon him. The order was granted upon an affidavit which averred that the affiant had been employed by the plaintiff's attorney in connection with the action and “ that the defendant Higgins informed him that he had known Watson for a number of years and that Watson had lived in Canada all his life; that the defendant Silleck, Jr., who executed the mortgage to Watson, informed him that Watson resided in Hamilton, Ont., Can., and had lived there for about twelve years, and that Watson occasionally came to New York and had business with him, and that Silleck promised to write Watson and notify affiant when he would be in New York so that affiant might serve the summons upon him; that nearly four weeks later affiant called at Silleck’s place of business, and that a person in charge of the place stated that Silleck was not in but had received a letter from Watson which was exhibited to affiant, was dated Hamilton, Ont., Can., and stated that Watson had no occasion to come to New York 1 at present, and did not know when he would come; ’ that affiant left a proposed affidavit of these facts with a request that Silleck verify the same, and a little over a month later called again and saw Silleck, who refused to verify the affidavit unless the action were changed so as to make the defendant Higgins, who executed the bond and mortgage sought to be foreclosed, ‘ principal defendant; ’ that the attorney at whose request the Watson mortgage was recorded informed affiant that he knew Watson, and that Watson resided in Hamilton, Ont., but that he had not transacted any business with him in a number of years, and could not appear for him unless the defendant Silleck. whose ‘ matter ’ it was, would authorize such appearance, and a few days later informed affiant that he could not obtain authority from Silleck to appear for Watson. The order was not applied for until about six weeks after the last inquiry made concerning Watson’s residence or whereabouts.”
    There was no averment that the summons was ever issued to the sheriff or delivered to any one with directions to serve the same upon Watson, nor did the affidavit contain an allegation on information and belief of Watson’s non-residence, or an averment, based upon this certificate or any other information or proof,- that the affiant believed that Watson was a non-resident of the State, or that the plaintiff had been or would be unable in the exercise of due diligence to serve the summons personally.
    
      Held, that the affidavits did not confer jurisdiction on the court to issue the order;
    That, for aught that appeared, the affiant may have known or had reason to believe from other information obtained that Watson did not reside in Hamilton, Ont., and may have known or had reason to believe that Watson was within the State or was coming to the State, or had entered the State before the order was obtained many weeks later, so that personal service could have been made upon him;
    That if the affidavits had averred that Watson was a non-resident and resided in Hamilton, Ont., upon information and belief derived from the sources and based upon the grounds stated in the affidavits, and had shown that the summons had been issued to the sheriff and returned unserved by him, there would have been sufficient basis for the issuance of the order;
    That a certificate of the sheriff that he had used due diligence to find Watson in order to serve him with the summons and complaint, and further stating, ‘ ‘ from the best information I can obtain I learn that he is a resident of and now is in Hamilton, Ontario. Wherefore I return him as not found,” which certificate, although referred to in the order of publication, was not made a part of the affidavits upon which the order was procured or referred to in such affidavits, could not be considered on the application for an order for service by publication.
    O’Brien and Hatch, JJ., dissented.
    Appeal by Moise Geismann, the purchaser at a mortgage foreclosure sale, 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 16th day of May, 1904, denying his motion to be relieved from his bid and for the return of the moneys deposited by him.
    
      Isaac Moss, for the appellant.
    
      Joseph E. Bullen, for the respondent.
   Laughlin, J.:

The ground upon which the purchaser asks to be relieved from his bid is, that a second mortgage upon the premises is not cut off by the judgment, owing to the fact that service upon the owner and holder thereof was made by publication, and that the affidavits upon which the order of publication was granted were insufficient to give the court jurisdiction. The order was applied for and made upon the theory that George Watson, the owner and holder of the second mortgage, resided at Hamilton, Ont., and that the plaintiff had been or would be unable in the exercise of due diligence to make personal service of the summons upon him. Section 439 of the Code of Civil Procedure provides that where an order of publication is applied for on the ground of non-residence, proof by affidavit must be exhibited to the court that the plaintiff has been or will be unable with due diligence to make personal service of the summons.” There wás no proof by affidavit that the summons was ever issued to the sheriff or delivered to any one with directions to serve the same upon Watson. There appears in the record, and it is referred to in the order, a certificate of the sheriff that he has used due diligence to find Watson so as to serve him with the summons and complaint, “ and from the best information I can obtain I learn that he is a resident of and now is in Hamilton, Ontario. Wherefore I return him as not found.” But this certificate was not made a part of either of the affidavits upon which the order was procured or referred to therein, and consequently it cannot be considered as any proof. (Waffle v. Goble, 53 Barb. 517; Easterbrook v. Easterbrook, 64 id. 421; Doheny v. Worden, 75 App. Div. 47, 52.) Nor does either affidavit contain an allegation on information and belief of Watson’s non-residence, or an averment, based upon this certificate or any other information or proof, that the affiant believes that Watson is a non-resident of the State, or that the plaintiff has been or will be unable in the exercise of due diligence to serve the summons personally. One of the affidavits merely shows that no previous application has been made for an order of publication. The other shows that the affiant has been employed by the attorney for the plaintiff herein in connection with this action; ” that the defendant Higgins informed him that he had known Watson for a number of years and that Watson had lived in Canada all 1ns life; that the defendant Silleck, Jr., who executed the mortgage to Watson, informed him that Watson resided in Hamilton, Out., Can., and had lived there for about twelve years, and that Watson occasionally came to New York and had business with him, and that Silleck promised to write Watson and notify affiant when he would be in New York so that affiant might serve the summons upon him ; that nearly four weeks later affiant called -at Silleek’s place of business, and that a person in charge of the place stated that Silleck was not in but had received a letter from Watson which was exhibited to affiant, was dated Hamilton, Ont., Can., and stated that Watson had no occasion to come to New York “at present, and did not know when he would come; ” that affiant left a proposed affidavit of these facts with a request that Silleck verify the same, and a little over a month later called again and saw Silleck, who refused to verify the affidavit unless the action were changed so as to make the defendant Higgins, who executed the bond and mortgage sought to be foreclosed, “principal defendant;” that the attorney at whose request the Watson mortgage was recorded informed affiant that he knew Watson, and that Watson resided in Hamilton, Ont., but that he had not transacted any business with him in a number of years, and could not appear for him unless the defendant Silleck, whose “ matter ” it was, would authorize such appearance, and a few days later informed affiant that he could not obtain authority from Silleck to appear for Watson. The order was not applied for until about six weeks after the last inquiry made concerning Watson’s residence or whereabouts. These are the material facts stated in the affidavit.

It would probably be sufficient to show that Watson was a nonresident and resided in Hamilton, Ont., if that fact were averred by the affiant upon information and belief based upon the information set forth ; but, in the absence of such an averment, the mere declarations of third parties have no probative force. For aught that appears, the affiant may have known or had reason to believe from other information obtained that Watson did not reside in Hamilton, Ont., and may have known or had reason to believe that Watson was within the State or was coming to the State, or entered the State before the order was obtained many weeks later, so that j>ersonal service could have been made upon him. If the affidavit alleged the principal facts upon information and belief derived from the sources and based upon the grounds stated, and had shown that the summons had been issued to the sheriff and returned unserved by him, the proof of the non-residence and the inability to make personal service in the exercise of due diligence would sufficiently appear. (Howe Machine Co. v. Pettibone, 74 N. Y. 68; Belmont v. Comen, 82 id. 256.) Where the order is sought on the ground of non-residence there must be some competent evidence of non-residence and that plaintiff has been or will be unable, in the exercise of due diligence, to make personal service (McCracken v. Flanagan, 127 N. Y. 493); but these things are not shown and the papers, are fatally defective. We are of opinion that the court did not obtain jurisdiction to make the order, and, therefore, the purchaser should not be compelled to take the title.

It follows that the order should be reversed, with ten dollars costs and disbursements, and motion granted to the extent of relieving the purchaser from completing his bid and directing the return of the amount paid by him, together with any interest earned thereon, with ten dollars costs.

Yan Brunt, P. J., and Patterson, J., concurred ; O’Brien and Hatch, JJ., dissented.

Order reversed, with ten dollars costs and disbursements, and motion granted to the extent stated in opinion, with ten dollars costs.  