
    Sisto Maiello, Plaintiff, v. Margherita Magro Maiello, Defendant.
    (Supreme Court, Fulton Special Term,
    December, 1903.)
    Divorce — Substituted service of summons where the defendant is not found.
    It is doubtful whether sections 435, 436, of the Code of Civil Procedure, relative to service of summons where a defendant is not found, apply to an action for a divorce but if these sections are applicable they should be employed with the utmost caution.
    It must appear that service by publication under Code Civ. Pro., § 438, cannot be made.
    A sheriff’s return, as to his diligence in attempting to serve ■ a summons, considered and held insufficient to justify an order under Code Civ. Pro., §§ 435, 436.
    Where the proof is that the plaintiff and the defendant used to live together in a house where no one else resides and that the defendant has run away, it would be useless to serve the defendant under Code Civ. Pro., § 436, because it would give notice to no one except the plaintiff himself.
    Ex parts application, for an order directing service of summons by delivery of a copy thereof at the residence of the defendant, or affixing the same to the outer door of the defendant’s residence and mailing, under the provisions of sections 435 and 436 of the Code of Civil Procedure.
    Florence J. Sullivan, for motion.
   Spexoeb, J.

This is the second application in this action for an order directing service of the summons upon the defendant in the manner permitted by sections 435 and 436 of the Code of Civil Procedure.

The first application was made upon the return of the sheriff couched literally in the language of the form found on page 635 of Crocker on Sheriffs, and was denied, on the ground that no fact was therein stated, the entire return consisting of conclusions, the court holding that the proofs re-quired by section 435 to justify the granting of an order must be by statement of facts and circumstances in the knowledge of the sheriff or affiant, from which the court or judge could determine whether proper and diligent effort had been made to make personal service of the summons. 1

On this application a further return from the sheriff is produced, together with an affidavit by plaintiff’s attorney. The sheriff’s return is dated December twenty-sixth, wherein he certifies, that on the sixteenth day of December, he received the summons for service; that he did not know the defendant; that he consulted with one who had known her for some years, and learned from him and the plaintiff that she had resided with the plaintiff, at No. 11 Gilland avenue, in the city of Amsterdam, N. Y., until a very recent date. He further certifies that he inquired of three of the defendant’s neighbors — one whose name he does not know, and the others he does not give — and learned from them that defendant was not at home; that they did not know when she would be home, and that she had run away with another man, and that the plaintiff’s residence was also at No. 11 Gilland avenue, Amsterdam, N. Y. The plaintiff’s attorney makes affidavit that the plaintiff and defendant are husband and wife, and that the action is for divorce.

I have grave doubts whether the provisions for substituted service, under sections 435 and 436 of the Code of Civil Procedure, were intended to apply to an action for divorce; but, whether so intended or not, I am constrained to the view that their use for that purpose should be employed with the utmost caution. The provisions of section 438 ei seq., for substituted service by publication, apply to such an action by the express provisions of those sections, and unless it appears from the moving papers that service in the manner there provided for cannot be made, the -application for an order directing service under sections 435 and 436 should be denied.

In order to justify an order under section 435, supra, it must appear by proof that the defendant is a person residing within the State, and that his place of sojourn cannot be ascertained, or if he is within the State that he avoids service, so that personal service cannot be made. Only two contingencies are here provided for. ¡Neither of these is covered by the papers presented upon this application. The sheriff seems to have made no effort to discover the defendant’s present place of sojourn, and does not state anything which indicates that she is within the State and avoids service.,

But even if such contingencies were met by facts set forth in the return, it further appears that the defendant’s residence and that of the plaintiff is one and the same, and there is nothing to indicate that any other person, save the plaintiff and defendant, resides there. I think, therefore, that a court or judge should refuse to make an order directing the service of the summons by leaving a copy thereof at such residence, if admittance can be obtained, and if admittance cannot be obtained, to affix the same to the door, and mailing a copy to defendant at such residence (this being the only method of service authorized by section 436), because the practical effect of such a service would give notice to no one save to the plaintiff himself, the defendant being absent from home.

The provisions of the Code for substituted service by publication contain ample provisions for a case such as this, and I think the plaintiff should be required to resort thereto.

The application, therefore, is denied.

Application denied.  