
    Bridget Goetz and Others, Plaintiffs, v. George Solms, Defendant.
    Second Department,
    June 9, 1916.
    Process—service by publication—insufficient affidavit—real property — vendor and purchaser—when title not marketable.
    Án affidavit upon which an order for service by publication was made in a suit of foreclosure, which merely alleged that the deponent had made diligent inquiry for a certain defendant, but had been unable to find her within this State and that said defendant resides in a certain city of another State, was insufficient in that no facts appeared from which the court could determine that due diligence had in fact been used. Such affidavit must state facts from which the conclusion sought may be logically drawn by the court.
    Hence, a title to lands based on a sale in said suit of foreclosure is unmarketable, and a vendee will not be required to perform specifically his contract to purchase.
    Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure.
    
      Paris 8. Bussell [John Ingle, Jr., with him on the brief], for the plaintiffs.
    
      Clarence 8. Wright, for the defendant.
   Carr, J.:

This is a submitted controversy. The plaintiffs are the vendors and the defendant the vendee under a contract for the sale of land. The plaintiffs have tendered a deed and the defendant has rejected the title as unmarketable. The alleged defect in title arises from a sale under a judgment of foreclosure which forms a link in the plaintiffs’ title. In the action in which the judgment of foreclosure and sale was entered, it is contended that the court acquired jurisdiction of the defendant, a Mrs. Brady, the owner of the equity of redemption, by virtue of an order of the Supreme Court, granted in Kings county and entered in Queens county, authorizing service by publication. At the time in question section 135 of the Code of Procedure was in force. That section of the former Code of Procedure provided that - ‘ Where the. person on whom the service of the summons is to be made cannot, after due diligence, be found within the State, and that fact appears by affidavit to the satisfaction of the court, or a judge thereof, * * * such court or judge may grant an order that the service be made by the publication of a summons ” in certain specified cases. The only question involved in this controversy is whether the affidavit upon which the order for service by publication was granted was a sufficient compliance with section 135 of the ©ode of Procedure, as above quoted. The affidavit, so far as now material, recites that the deponent “has made diligent inquiry for said Martha A. Brady, wife of Edwin L. Brady, and Edwin L. Brady, but has been unable to find them within this State. That said defendants, Martha A. Brady, wife of Edwin L. Brady, and Edwin L. Brady, reside in Jersey Oity, New Jersey.”

Personal service of the summons was made upon the defendants in Jersey City, N. J., and they did not appear in the action, but that fact cannot cure any insufficiency in the affidavit or the order granting leave for substituted service. (Peck v. Cook, 41 Barb. 549.) The deponent in the affidavit in question did not even use the words of the statute, “due diligence.” He deposed that he made a “diligent inquiry,” but the nature and extent of the inquiry is not specified, and the court had nothing before it upon which it could be satisfied that that “due ” diligence had been used. It was said in Kennedy v. Lamb (182 N. Y. 228, 233) that “An affiant who simply repeats the words of a statute merely states his opinion upon the proposition to be proved. Proof requires that facts be stated from which the conclusion sought may be logically drawn.” The fact that Mrs. Brady then resided in Jersey City, N. J., as stated in the affidavit, was no evidence that at that time she “cannot, after due diligence, be found within the State.” (McLaughlin v. McCann, 123 App. Div. 67.) We are of opinion that the affidavit upon which the order of publication rests was insufficient to give the court jurisdiction to make the order.

Judgment should be awarded for the defendant for the repayment of the sum of $370 and interest, being amount of the deposit paid on the delivery of the contract, and the further sum of $63.50, being the stipulated expense incurred by the defendant for the examination of title, without costs, as stipulated.

Jenks, P. J., Thomas, Mills and Rich, JJ., concurred.

Judgment awarded for defendant for the repayment of the sum of $370 and interest, being amount of the deposit paid on the delivery of the contract, and the further sum of $63.50, being the stipulated expense incurred by the defendant for the examination of title, without costs, as stipulated.  