
    Caroline Eberle, Individually and as Executrix of Franz Eberle, Deceased, Respondent, v. Philip Krebs and Others, Defendants. New York Journal and Advertiser, Appellant.
    
      Affidavit of publication of a legal notice—how secured where the newspaper refuses to furnish it.
    
    The remedy for the refusal of the publisher of a newspaper, or other proper, person in his service, to furnish an affidavit of the publication of the summons in a foreclosure action, which is required by section 444 of the Code of Civil Procedure, is by a motion, under section 885 of the Code of Civil Procedure, to compel such publisher or other proper person in his employ to make the affidavit, and not by an order directing the paper by name, which name is not shown to be that of the corporation publishing the paper, to furnish and deliver such affidavit.
    
      Semble, that if the paper were published by a corporation of that name, the court would not have power, by an order in an action to which the corporation was not a party, to compel it to require one of its employees to make the affidavit.
    Appeal by the New York Journal and Advertiser from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens, on the 23d day of November, 1899, directing that “the said New York Journal and Ad/oertiser furnish and deliver an affidavit of the publication of the summons in this action in said Hew York Jowrnal and Ad/oertiser to the plaintiff or her attorney upon the payment to it of the legal fees for such publication and service, to wit, the sum of ten dollars.”
    
      Samuel Bitterman, for the appellant.
    
      John Brunnemer [.Michael II. Owrra/n with him on the brief], for the respondent.
   Willard Bartlett, J.:

The plaintiff in this proceeding has mistaken her remedy. The action is a foreclosure suit in which the order for the service of the summons by publication provided that it be published in the Hew York Journal a/nd Ad/oertiser once a week for six successive weeks. The plaintiff’s attorney swears that publication of the summons has been duly made, and that he has tendered to the person in charge of the Hew York Journal and Ad/oertiser the sum of ten dollars, that being the legal fee for said publication, and has demanded an affidavit of such publication; but that the person in charge refused to give the affidavit, and that the representative of the newspaper claims that the sum due for publishing the summons is fifty-nine dollars and forty cents, and refuses to give the affidavit unless that amount is paid.

Upon an affidavit setting out these facts, the plaintiff moved for the order from which this appeal is taken. Ho papers were read in opposition to the motion, and the application was granted. “ The newspaper in question,” said the learned judge at Special Term, “ was not bound to publish the summons herein, but having accepted the designation of the judge who made the order, it can only require the payment of the compensation prescribed by law.”

In this view we concur, assuming that no special contract was made between the plaintiff and the publisher of the newspaper in reference to the compensation to be paid for publishing the summons. But the refusal of the publisher, or other proper person in his service, to give the affidavit required by section 444 of the Code of Civil Procedure, did not entitle the plaintiff to relief in the form of the order under review. That order is directed, not against the printer or publisher, or his foreman or principal clerk, by whom the statute requires proof of the publication of the summons to be made, but in terms commands the New York Journal and Advertiser to furnish and deliver the prescribed affidavit. There is no proof whatever in the case that any corporation exists which is known as the New York Journal and Advertiser, and certainly it cannot be held that the order runs against any person thus designated. Even if it did appear that there was a corporation of this name by which the newspaper was published, we think it would hardly be within the power of the court by an order in this action, to which the corporation is not a party, to compel such publisher to in turn compel one of its employees to make an affidavit.

The true remedy of the appellant, under the facts of the case as they are made to appear in this proceeding (and we must assume that they are truly stated in the affidavit of the plaintiff’s attorney, since that affidavit is not contradicted), seems to be indicated by section 885 of the Code of Civil Procedure. Provision is made therein for compulsory proceedings to take the affidavit of a person not a party to an action for use in making a motion in a court of record. The person whose affidavit is required under section 444 of the Code, as proof of publication of the summons upon an application for judgment in a foreclosure suit, may be compelled to make an affidavit under section 885, and may be punished if he refuses to do' so. The provisions of the latter section afford the plaintiff a simple and easy method of procuring the desired proof.

The order appealed from must be reversed, but without costs, and without prejudice to an application to procure the testimony of the publisher of the New York Journal and Advertiser under section 885 of the Code of Civil Procedure.

All concurred.

Order reversed, without costs, and without prejudice to an application to procure the affidavit of the publisher of the New York Journal and Advertiser under section 885 of the Code of Civil Procedure.  