
    Terence McCracken, App’lt, v. William C. Flanagan et al., Resp’ts.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed October 6, 1891.)
    
    Service—Publication—Affidavit.
    Simple averments in the- affidavit that the defendant is a non-resident and cannot he found within the state are not alone sufficient to support an order for the service of a summons by publication. The affidavit should state facts showing that due diligence to find and serve the defendant within the state has Ken exercised.
    Appeal from a judgment of the general term of the supreme-court for the second judicial department, affirming a judgment of that court at special term rendered and entered upon the decision of the court without a jury.
    The action was ejectment, brought to recover the possession of two lots of land situate at Mount 'Vernon, Westchester county, by the plaintiff McCracken, alleging ownership. The answer alleged ownership in defendants and possession by them as such owners.
    Upon the trial the plaintiff relied upon a conveyance of the premises in question from one Henry Kahle, who, on the 12th day of December, 1867, was the owner of such, premises, to the plaintiff and one Patrick McCracken, by deed executed on the 17th day of May, 1869. The said Patrick, by his will, devised his interest in the same to the plaintiff.
    The defendants derived title to the premises through a deed from the sheriff of Westchester county, made to one Lawrence Cartan on the 25th day of January, 1869, and by mesne conveyances from Cartan to one Edward Flanagan, and from the latter to the defendants.
    The sheriff’s conveyance was made in pursuance of a sale of said premises in an action determined by judgment in favor of "Lawrence Cartan and others against said Henry Kahle in the supreme court
    A warrant of attachment was issued in the action against Kahle on the ground that he was not a resident of the state of New York. ’A'notice of the pendency of the action was duly filed, and an order was procured from the county judge of Westchester county for the service of the summons issued as the commencement of this action by publication. Kahle, the defendant in that action, did not appear therein. The application was made under § 135, subd. 3, of the Code of Procedure, then in force
    
      Eugene S. Ives, for app’lt; James W. Covert, for resp’ts.
    
      
       Reversing 24 N. Y. State Rep., 439.
    
   Potter, J.

The affidavit upon which the judge granted the order for service of the summons and complaint upon the grantor of plaintiff was as follows:

“ City and County of Hew York, ss.:

“ Minott M, Silliman, being duly sworn, says that he is one of the attorneys for the plaintiffs in the above entitled action. That a summons has been issued in this action against the defendant therein. That defendant is a non-resident of this state, nor can be found therein, but has a place of residence at Matewan, in the state of Hew Jersey. That this action is brought to recover the sum of $964.32, and the ground of the plaintiffs’ claim in this action is a promissory note made by said defendant for $727, and due December 13, 1866, and $1.81 for protest of said note, and $2.55, interest due thereon, and the further sum of $231.66, with $1.30, interest due thereon on a book account for goods sold and delivered by said plaintiff to said defendant, which said several sums still remain due and unpaid.

“That said defendant has property, consisting of real estate, situated at Mount Yernon, in said county of Westchester and state of Hew York.”

The affidavit is made by one of plaintiffs’ attorneys, and though it embraces several quite diverse subjects, it nevertheless imports unqualified knowledge in respect to all of them.

The sole question sought to be raised, upon this appeal by the appellant arises upon § 135 of the Code of Procedure, which is in these words: “ Where the person upon whom the service of the summons is to be made cannot, after due diligence, be found within the state, and that fact appears to the satisfaction of the court or a judge thereof, or of a county judge of the county where the trial is to be had, and it in like manner appears that a cause of action exists against the defendant in respect to whom the service is to be made, or that he is a proper party to an action relating to real property in this state, such court or judge may grant an order that the service be made by the publication of a summons in either of the following cases: Sub. 3. Where he is not a resident of this state, but has property therein, and the court has jurisdiction of the subject of the action,” which precedes the specifications of the class of cases in which service of the summons other than personal may be made.

It would seem that by a just construction of that section certain facts are required to be made to appear to the satisfaction of the court or judge before granting the order for this exceptional mode of service of process upon the defendant in the action, viz.: that such person cannot, after due diligence, be found within this state, and that a cause of action exists against such defendant in certain respects.

There is no question that the affidavit in this case makes it appear that a cause of action exists against the defendant, and the nature of it *But does the affidavit make these facts to appear, viz. : that the defendant cannot, after due diligence, be found within the state? This language fairly imports two facts, viz,: the exercise of due diligence to find the defendant within this state, and the failure to find him through the exercise of such diligence.

Assuming that it was competent for the affiant to depose that the defendant could not be found within the state, will such statement in the affidavit suffice for the proof of the exercise of due diligence to find the defendant, or is due diligence necessarily to be imported'into the affidavit, or to be inferred from the statement therein that the defendant cannot be found within the state? If that was the case, the legislature would doubtless have been satisfied to have the affidavit state that the defendant cannot be found within the state, and not have superadded thereto the phrase “after due diligence.”

Besides, it is a fundamental rule that when facts are to be found by a judge or jury, the evidence of the existence of the requisite facts must be presented, and not the conclusion or inference of the affiant or witness that the requisite facts exist If this were not so, the judicial function of' the court or jury would be superseded, and the conclusion of the affiant or witness would be substituted instead of the judgment of the court or j™y-. . . .

. . . It is plain from a consideration of the law that jurisdiction of a court to render a judgment against a party to an action is ordinarily acquired by the personal service of process, as well as from the phraseology of § 135, that the order for a different mode of service may only be granted upon proof by affidavit of the existence of certain facts, and hence the fact and the mode of establishing it is jurisdictional.

How the fact to be proved is that the defendant cannot be found in the state after or through due diligence used for the purpose of finding the defendant in order to make personal service of the summons upon him. The order, which is based upon the affidavit, and is in its nature and office an adjudication that due diligence has been used to find and serve the defendant personally, contains no statement in respect to diligence.

We will now turn to the decisions of the courts upon this point and see whether they indicate any departure from the rule as above stated. In the case of Kennedy v. The New York Life, etc., 101 N. Y., 487, cited in the opinion of the learned general term in this case, and which was an action to foreclose a mortgage upon real estate, the affidavit upon which the order of publication was made stated that the defendants “ cannot, after due diligence, be found within this state, they being residents of other specified states,” “ that the summons herein was duly issued for said defendants, but cannot be personally served upon them by reason of such non residence.” The affidavit in the case cited states, in the language of the statute, that “ the defendants cannot, after due diligence, be found within this state” * * * “but cannot be served personally upon them by reason of such non-residence.”

The affidavit in the case under consideration entirely omits the words “ after due diligence,” or to state that any degree of diligence whatever had been used to find the defendant. If it were competent for a party to state that he has used diligence or due diligence, then the affidavit in the case cited might be held sufficient, especially in connection with the further statement that they cannot be served personally upon them by reason of such non-residence.”

In the case of Carleton v. Carleton, 85 N. Y., 313, this court held that an affidavit stating “ that the defendant has not resided within the state of New York since March, 1877, and deponent is informed and believes that the defendant is now a resident of San Francisco, California,” was insufficient to confer jurisdiction. The affidavit in the latter case, like the affidavit in this case, entirely omits the averment of due or any diligence, and has the like averment of the non-residence of the defendant The opinion in theetwo cases, 101 N. Y. and 85 N. Y., supra, was written by the same judge and was concurred in by all the members of the court, and moreover the opinion in the 101 N. Y. expressly reaffirms the opinion in the 85 N. Y., and maintains there is a distinction between the affidavit in the two cases. But the same distinction exists between the case at bar and the case in 101 N. Y. that exists between the case in 85 N. Y. and 101 N. Y., supra. The reasons and comments contained in the opinion in 85 N. Y. are applicable to the case at bar, and need not be here repeated.

The case of Jerome v. Flagg, 48 Hun, 351; 15 N. Y. State Rep., 827, is in line with the case of Kennedy v. The New York Life, etc., 101 N. Y., supra, and the affidavit was held sufficient upon the ground that the expression in the affidavit “ that said defendant cannot with due diligence be served personally within the state ” must be regarded not solely as a conclusion of law, but as a statement of fact tending to show that due diligence had been used.

To the same effect is the case of Seiler v. Wilson, 43 Hun, 629; 7 N. Y. State Rep., 254, and the distinction is made and followed between the Kennedy case, 101 N. Y., and Carleton case, in 85 N. Y., supra, and Lockwood v. Brantly, 31 Hun, 155, and Bixby v. Smith, 3 id., 60, and Easterbrook v. Easterbrook, 64 Barb., 421.

This question, in Bixby v. Smith, supra, arose collaterally in an application to be relieved from, a contract to purchase a title affected by this alleged defect The affidavit in the case cited stated that six of the defendants reside at Selina, in the state of Alabama, and one of the defendants at Greenville, in that state. “ There is no statement in the affidavit that these defendants could not be found within the state after due diligence, nor is there anything to show that any effort had been made to find them. The affidavit rests upon the naked assertion- of non-residence. The order, in form, follows the affidavit. It recites that it appeared to the satisfaction of the court that the defendants named are non: residents of the state and reside at the places named in the affidavit. The order fails to recite that it also appeared to the satisfaction of the court that the defendants could not, after due diligence, be found in this state. There is nothing to indicate in the' order that the judge or court passed upon that question; and nothing was laid before the judge calling for his determination of that question. The order, it appears, was made by myself at chambers, in the haste and pressure of business at that court, relying on the experience of the attorney, in this class of actions, in the preparation of such papers and orders. I am unable to see any ground upon which the order can be treated as valid. A part of the defendants named as nonresidents did not appear in the action, and as to them the judgment is' inoperative.”

It is, from an examination of this statute and the decisions in relation to it, pretty evident that some degree of diligence must be exercised" to find the party; and what is a due degree depends upon circumstances surrounding each case, and that the simple averments in the affidavit that the defendant is a non-resident and cannot be found within the state are not alone sufficient to support an order for the service of a summons by publication. Those facts do not imply that any diligence has been exercised to find and serve the defendant personally with process. It needs no argument to show that the averment in the affidavit that the defendant cannot be found in the state does not tend to prove the exercise of due diligence to find the defendant; for the statute in question not only requires that it be stated in the affidavit that the defendant cannot be found, but expressly requires the averment that he cannot be found after due diligence. Hence the statute forbids that due diligence may be implied from the statement that the defendant cannot be found within the state.

In view of the decisions above referred to, and the cases therein referred to, we are constrained to a different conclusion from that expressed in the opinion of the learned general term in this case, “ that the title of the defendant’s grantor under the sheriff’s deed to him in pursuance of the sale under the judgment was valid, and that the defendant derived a good title from his grantor. The plaintiff, therefore, took no interest in the property under the devise in the will of McCracken, because the grantor of his devisor had been divested of the title by the sale under the judgment against him in the attachment suit”

The judgment should, therefore, be reversed and a new trial granted, costs to abide event.

All concur, except Brown, J., not sitting.  