
    George Doheny and Jacob Amos, as Administrators with the Will Annexed of Lucius Gleason, Deceased, Respondents, v. Stewart Worden, Defendant. Salt Springs National Bank of Syracuse, Appellant, v. Stewart Worden, Defendant.
    
      Ser vice-of summons by publication—the publication must be made once in each seven days — it need not be on the same day in each week—proof as to inability to make personal service must be by affidavit, not by sheriff’s certificate — attachment—proof as to .non-residence and departure to defraud creditors.
    
    Under section 440 of the Code of Civil Procedure, relative to the service of a summons by publication, the. publication must be made once in each seven days; if, on account of the occurrence of a legal holiday on the day when the publication would ordinarily be made, the publication is made twice in one period of seven days, and not at all in the succeeding period of seven days, the service is invalid.
    
      Semite, that it is not necessary that all the publications should be made on the same day of each week.
    On an application for an order for the service of a summons by publication, proof of the plaintiff’s inability to serve the summons personally upon the defendant within the State of New York must _be made by affidavit, and a sheriff’s certificate to that effect is not sufficient.
    An affidavit used on a motion for a warrant of attachment was made on July 29, 1899, and alleged that in November, 1898, the deponent received a letter from the defendant, written in Washington, D. C., dated November 7, 1898, stating that he had not succeeded in obtaining a certain contract; that he.made up his mind when he left home that if he did not get such contract he would not return; that his reason for this was that he was owing about §4,000, more than he had anything to pay with, and could not face the music; that he was going to start for Porto Rico, and if he succeeded in getting work there would stay there for awhile, and asked deponent to keep his going away as quiet as possible; that deponent had received no letters from him since, except one letter mailed from Havana, Cuba.
    
      Jletd, that the affidavit was insufficient to show that the defendant had ceased to be a resident of the State of New York, or, being a resident, that he had departed from the State of New York with intent to defraud his creditors or to avoid the service of a summons.
    Adams, P. J., dissented.
    Appeal by the Salt Springs National Bank of Syracuse from an order of the Supreme Court, made at the Oneida Special Term and entered in the office of the clerk of the county of Onondaga on the 13th day of February, 1902, vacating an attachment and setting-aside a judgment and an execution issued thereon. ■
    
      B. A. Benedict, for the appellant.
    
      Miscock, Boheny, Williams & Cowie, for the respondents.
   Williams, J.

■ The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. '

The appellant procured an attachment to be issued and levied upon personal property of defendant November 12, 1898. Judgment was thereafter entered in the action Hay 11, 1899, and an execution issued and levied July 28, 1899.

The respondents procured an attachment to be issued and levied upon defendant’s personal property July 31, 1899.

About the 22d of September, 1899, respondents noticed a motion for October 7, 1899, to vacate the appellant’s attachment, judgment and execution, for failure to make a legal service of the summons in the appellant’s action, and this motion was granted. The defendant in the two actions was not a party to the motion.

The service of the summons upon the defendant in the action, personally, within or without the State, or by publication thereof, as required by law, was essential to the validity of appellant’s attachment, judgment and execution. This would be true so far as the judgment and execution were concerned, manifestly, and section 638 of the Code of Civil Procedure provides as to the attachment that “ Personal service of the summons must be made upon the defendant, against whose property the warrant is granted, within thirty days after the granting thereof; or else, before the expiration of the same time, service of the summons by publication must be commenced, or service thereof must be made without the State, pursuant to an order obtained therefor, as prescribed in this act, and if publication has been, or is thereafter commenced, the service must be made complete, by the continuance thereof.”

There was concededly no service of the summons upon the defendant personally within or without the State, but there was an. attempted publication thereof, which respondents claimed was not completed as required by law. There was an order for the publication, made under section 440 of the Code of Civil Procedure, which directed that it be made in two newspapers not less than once a week for six successive weeks. One of the newspapers designated was the Syracuse Evening Journal. The publication in this newspaper was made December 12, 19 and 24, 1898, and January 2, 9 and 16,1899, so that it was made twice during the week commencing Monday, December nineteenth, and was not published at all during the week commencing Monday, December twenty-sixth. There was a full week after the publication on December twenty-fourth during which there was no publication at all. The publication was commenced on a Monday, and .was continued on each Monday thereafter, except Monday, December twenty-sixth. Christmas, December twenty-fifth, falling on Sunday, Monday, the twenty-sixth, was the legal holiday under the Statutory Construction' Law (Laws of 18.92, chap. 677, § 24, as amd. by Laws of 1897,. chap. 6.14). The newspaper was not published on that day by reason of its being a holiday. The mistake was made in publishing the summons in that paper on Saturday, the twenty-fourth, instead of Tuesday, thó twenty-seventh. Two publications were thus made in one week, and none at all in the following week. This mistake rendered the service of summons by publication insufficient. There was no legal service of the summons. The provision of the Code is definite and must be complied with. Very likely it is not necessary that all the publications shall be made on any one day of the week, but there must be one in each seven days.

The court, therefore, was correct in holding that there was no legal service of the summons upon the defendant in the appellant’s action.

It is' claimed, however, that the respondents had no standing to raise the question we have considered and to ask for the relief afforded by the order appealed from.

So far as the attachment was concerned, the motion was made under section 682 of the Code of Civil Procedure, which provides that “ The defendant, or a person who has acquired a lien upon, or interest in, his property, after it was attached, may, at. any time before the actual application of the attached property, or the pro^ ceeds thereof, to the payment of a judgment recovered in the action, apply to vacate or modify the warrant,” etc.

In order to secure the benefit of this provision, the respondents were obliged to show a valid lien upon or interest in the- property acquired after the property was attached by appellant, They claimed such lien by attachment issued and levied July 31, 1899. The appellant attacked the respondents’ attachment and claimed it was invalid because:

First. The complaint and affidavit were insufficient as a basis for the ¿ttachment.

. Second. Tlie papers were insufficient to authorize an order for the service of their summons by publication.

Third. There was no proof, of a commencement or completed publication of the summons. '.

The complaint might have been more formal than it was, but it was sufficient to show a cause of action against the defendant. It was not necessary that there should be a complaint at all as a basis for attachment. An affidavit only was required by the Code of Civil Procedure (§ 636). The sufficiency of the complaint became material only by reason of the affidavit referring to the complaint for a statement of a cause of action, and making the complaint part of the affidavit for that purpose.

The affidavit of Doheny sufficiently complied with the requirements of subdivision 1 of section 636 of the Code of Civil Procedure as to the cause of action and the amount the plaintiffs were entitled to recover. There was an attempt to comply with the requirements of subdivision 2 of that section by showing that the defendant was a non-resident of the State, or being a resident that he had departed from the State with intent to defraud his creditors or to avoid the service of a summons. The affidavits stated that plaintiffs were so informed and believed, and gave as the source of such information and belief an affidavit of one George Albro, which was annexed. The Albro affidavit was made July 29,1899, two days before the issue of the attachment, and stated that during the month of November, 1898, he received a letter from the defendant, written in "Washington, D. C., dated November 7, 1898, stating that he had done his best to secure contract for shells, but had not succeeded ; that he ' made up his mind when he left home that if he did not get such contract he would not return; that his reason for this was that he was owing about §4,000, more than lie had anything to pay with, and could not face the music; that he was going to start for Porto Rico, and if he succeeded in getting work there would stay there for awhile, and asked Albro to keep his going away as quiet as it might be possible; that Albro had received no letter from him since, except one letter mailed from Havana, Cuba. There is no statement in either affidavit tending to show that the defendant had ever ceased to be a resident of this State or that his absence therefrom was anything more than temporary, or that during the eight months since he wrote to Albro he had not returned to the State, or that he-was not at the time the attachment was issued a resident of the-State. Nor was there any evidence in the affidavits tending to show that the defendant when he left this State did so with intent to defraud his creditors or to avoid the service of a summons. His ■property, apparently was left behind him, undisposed of, subject to the claims of his creditors^ and he was hoping to secure a contract and to return home and continue his business. His remaining away was because of his inability to secure any contract, There was no .compliance with subdivision 2 of section 636 sufficient to authorize the' issue of an attachment.

The order for the publication of .the summons was made upon the grounds that the defendant was not. a resident of the. State, and had departed therefrom with intent to defraud his creditors and to avoid the service of a summons, and that the plaintiff had.been and would be unable with due diligence to malee personal service of the summons upon him within the State. The same evidence and no other was given as to noñ-residence and leaving the State with intent to defraud and avoid service of summons, as on the application for the attachment, and the suggestions hereinbefore made as to this evidence are applicable here. The only evidence given.as to, the . inability to serve the summons personally upon the defendant within the State was the sheriff’s certificate that he had had the summons for several weeks and had been unable to serve it,.and had learned that defendant was not a resident of the State and was not in the State. Section 437 of the Code of Civil Procedure provides that proof of these facts must be made by affidavit, and it was held under section 135 of the Code of Procedure, containing a like provision as the present Code, that a certificate was not sufficient. (Waffle v. Goble, 53 Barb. 517; Easterbrook v. Easterbrook, 64 id. 421.)

More than this, the certificate is hardly sufficient as to the facts, . even if it had all the.force of. an affidavit.

It is also suggested that the respondents failed to show commencement of service of their summons by publication within thirty days after the issue of the attachment, and completion thereof as required by section 638 of the Code of Civil Procedure, hereinbefore quoted. The attachment was issued July 31,1899. It was necessary that the publication should, therefore, be commenced on or before August 30, 1899. The order directed publication to be made in the Syracuse ..Post-Standard as one of the. newspapers.

Section 442 of the Code provides that a notice described in the section shall be published witli the summons. The affidavit as to the publication in the Syracuse Post-Standard was made September 20, 1899, and stated that the notice, of which a printed copy was annexed, was published for four successive weeks, commencing August 29, 1899, and wTould be published in two more successive weeks. The full six weeks’ publication would then be completed if made prior to the hearing of the motion, but no proof was made at the time of the hearing the motion that such publication had been completed as required by section 638. The affidavit made, however, did not state that the summons itself had been or would be published at all. It stated merely that the notice had been and.would be published. No notice is annexed to the affidavit as stated therein. A copy of the summons is in the record, following the affidavit, but it does not appear whether any copy of the summons was annexed to the affidavit. In order to render the respondents’ attachment valid, the publication of the summons must not only be commenced within the time prescribed, but must be completed by the continuance thereof for the full six successive weeks, as prescribed by section 638.

For the various reasons hereinbefore suggested the respondents’ attachment was not a valid lien upon the defendant’s property so as to give them-a standing to attack the appellant’s attachment under section 682 of the Code.

These various objections to the validity of the respondents’ attachment are raised and discussed in the appellant’s points on this appeal, and no response whatever is made thereto in' respondents’ points. Whether this is because no answer could be made or through inadvertence of counsel we cannot say.

It is always more satisfactory to the court to have the views of counsel as to the points upon which a reversal is made of the decision of the court below, and we regret that counsel did not consider this branch of the case.

The respondents sought to vacate appellant's attachment upon a technical ground, and there is no reason why they should not have been defeated upon technical grounds if any such satisfactorily appeared in the respondents' papers.

The result we have arrived at renders it unnecessary to consider or determine the question as to whether the court in any event should have vacated the attachment wholly or should have set aside the judgment and execution. Prior to the application to vacate the attachment $689 of the property covered by appellant’s attachment had been reduced to money and applied on its judgment in the action. As to this property and money it is claimed the attachment should not have been vacated, the respondents’ attachment. never having become a lien on the part of defendant’s property, but the attachment should only have been vacated as to the balance of the property. (Code Civ. Proc. § 682; Trow's Printing, etc., Co. v. Hart, 85 N. Y. 500.)

As to the judgment' and execution the claim made is that the respondents had no standing to ask that they be set aside. At most they could only aslc that respondents’ lien upon the attachment property be made superior to the lien of- the judgment and execution.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

McLennan and Spring, JJ., concurred; Adams, P. J„ dissented; Hiscock, J., not voting.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  