fendants within this State because they are not now within the State; that said W. X. has lived continuously at

State of

in said

and has remained in said city and has not been within the State of New York, for the last now at said

years, and is

as deponent is informed by [stating proper source of information],30 and verily believes [and so on as to Y. Z.].

III. That no previous application [etc., as in end of Form No. 393].

[Jurat.]

[Order as in Form No. 413.]

FORM No. 400.

Allegation of unsuccessful effort to find.31

[Signature.]

That deponent is informed by R. S., the deputy sheriff of the county of in whose hands the summons heretofore issued in this action has been placed for service upon said defendant, that said defendant could not be found within this city after diligent inquiry made by him; that deponent this day called at the office of X. Z., in the city of who is a brother of said defendant Y. Z., and in deponent's belief the person from whom deponent could most readily ascertain if the said defendant was within the city or State, and the place where said defendant could most readily be found if in the city; and deponent was informed at such office by said X. Z., that said defendant Y. Z. was not in the city or State of New York, and deponent says that he saw the said defendant Y. Z. in the city of Chicago during the month of ., 19 and he verily believes and alleges that said defendant is not within this State, and cannot be found with due diligence. [Add allegation of inquiry of some other suitable source.]

County, New York, do hereby 19 two copies of the

summons [and complaint] in this action were delivered to me by

the plaintiff's attorney herein with instructions to serve the same upon the defendants W. X. and Y. Z.; 33 that I have made diligent efforts to find said defendants within said County of and serve said summons [and complaint] upon them, but I have been unable to find either of them therein.

In witness whereof I have hereunto set my hand this

day

of

19 .

FORM No. 402.

[Signature]

Sheriff.

Affidavit to obtain order for service by publication, etc., against a prisoner. [As in Form No. 390, substituting for paragraph V:] That in and for the county of

at

term of the Court of

and State of

and before this action was com

menced, defendant was duly convicted of the crime of

at

and

duly sentenced by said court to confinement in the penitentiary of the State of in said State, for the term of years, and in pursuance of the said sentence the defendant [Unless deponent has appending any letters

is now confined in said penitentiary. knowledge, state sources of information, from defendant, warden of prison, etc.]

FORM No. 403.

Affidavit to obtain service by publication, etc., against unknown defendant.34 [As in Form No. 390, to end of paragraph III, or as in Form No. 406, to end of paragraph II, etc., continuing:]

IV. That the defendant described in the summons and complaint as "John Doe, the said name being fictitious, the person intended being a partner of the defendant Y. Z.," is unknown to the plaintiff and to his attorney, and remains unknown after diligent inquiry made by deponent for the purpose of ascertaining

75 App. Div. 47, 77 N. Y. Supp. 959), at least in the absence of reference to it by the affidavit accompanying it. Empire City Sav. Bank v. Silleck, 98 App. Div. 139, 90 N. Y. Supp. 561, aff'd, without opinion, 180 N. Y. 541. It may certainly be used, however, as showing grounds for the statement in the accompanying affidavit that plaintiff cannot serve the summons in the State. See Belmont v. Cornen, 82 N. Y. 256; Howe Machine Co. v. Pet

tibone, 74 N. Y. 68; Schroeder t. Lear, 17 Wkly. Dig. 574.

33 Such instruction should be shown. Empire City Sav. Bank r. Silleck, supra.

34 This affidavit should be made by plaintiff or excuse shown. Piser t. Lockwood, 30 Hun, 6.

If defendant is dead at time of publication, judgment by default will be void. Howell v. Leavitt, 95 N. Y. 617, 620.

and serving him. That for such purpose deponent has here state inquiries-see Forms 407, 405, and paragraphs II and III. on pp. 687, 688- and the result], and plaintiff has been and will be unable with due diligence to make personal service.

V. That no previous application (fe.. as in end of Form No. 393]. {Jurat.]

[Order as in Form No. 416.]

FORM No. 404.

[Signature.]

Affidavit to obtain order for service by publication, etc., against one whose residence is unknown.35

As in Form 390, but substituting for the words between the * and the last paragraph:] That the residence of said Y. Z. is not known to plaintiff, nor can it with reasonable diligence be ascertained by him; that for the purpose of ascertaining it deponent has inquired for instance of M. Z., who is said Y. Z.'s brother, who is, as deponent is informed by said M. Z. and believes, his only relative residing in this State, and that said M. Z., in answer to said inquiries, informed deponent, on or about the day of last, that he is ignorant of the defendant's residence; lahat said defendant is not, as said M. Z. stated to deponent he believes, a resident of this State, and that his last known place of residence was at and that he believed that he had gone from that place; and that M. Z. stated he had had no communication whatever from him for over

"

FORM No. 405.

years.

Affidavit to obtain order for service by publication, etc., against one having no known residence.

As in Form 390, but substituting for the words between the * and the last paragraph, appropriate allegations, such as:] And is a seafaring man, having served within the past two years on à vessel owned by O. P., of this city, and is now absent, having sailed on the on a voyage to

ship

day of

, in the , commanded by S. T. That deponent is informed by O. R., the master of the one of said vessels, under whom said Y. Z. served previous to June last, that said Y. Z. has no fixed residence; that his wife, from whom he has separated.

35 See Steinle r. Bell. 12 Abb. Pr. (N. SO 171; Union Trust Co. t.

Driggs, 62 App. Div. 213, 70 N. Y.
Supp. 947.

resides in Liverpool, England, and his parents, with whom he occasionally sojourns, live in Montreal, but their names and residence deponent is unable to ascertain after diligent inquiry, and said Y. Z. has no settled abode in this city, nor, as said O. R. believes, in this State.

FORM No. 406.

Affidavit to obtain order for service by publication, etc., in action affecting specific property.36

[Title of court and action.].

[Venue.]

A. T., being duly sworn, says:

I. That he is the attorney [or, one of the attorneys] for plaintiff herein.

[In foreclosure.] II. That this action is brought to foreclose a mortgage owned and held by plaintiff upon real property at in the County of and State of New York; that the defendants, L. V., W. X. and Y. Z., are proper [and necessary parties herein, for the following reasons: as plaintiff is informed and believes, and alleged in this complaint herein,. Y. Z. is the owner of the equity of redemption of the mortgaged premises; W. X. holds a judgment against said Y. Z., which is said to be unpaid, and a lien upon the property; and I V. is a tenant in possession of the mortgaged premises; and that the complaint herein demands judgment that plaintiff's mortgage lien upon said property be enforced and said defendants be excluded from their said interests and liens therein.

>

[Or in partition.] That this action is brought for the partition of real property at in the County of and State of New York; that the defendants, U. V., W. X. and Y. Z., are proper [and necessary] parties to this action for the following reasons: as plaintiff is informed and believes, and alleges in his complaint herein, U. V. and W. X. are seized in fee simple as tenants in common thereof with plaintiff and Y. Z. claims to be entitled to dower therein, and the complaint demands judgment defining and enforcing their rights and interests, and affecting the title to the premises.

36 The paragraphs numbered II in this affidavit state, only as matter of convenience for the court, what otherwise might be ascertained from an examination of the pleadings at large and the other proofs. This is usual in practice, but not essential to juris

diction. This affidavit is usually made by the attorney, and the allegation of inability to serve, etc., supported by an affidavit of the process server. The grounds of inability may be stated here instead of in a separate affidavit.

III. That the plaintiff has been [or, will be—or, has been and will be] unable with due diligence to make personal service of the summons within the State [stating reasons and evidence as in Forms 390, 410, or say, as appears by the affidavit of M. N., hereto annexed, referring thus to all the other proofs].

IV. [State residence or last known place of abode of the defendants specified, if not already stated.]

V. That no previous application [etc., as in end of Form 393]. [Jurat.] [Signature.]

FORM No. 407.

Affidavit to obtain order for service by publication, etc., against unknown

[Title of court and action.]

[Venue.]

owners.37

A. B., being duly sworn, says:

I. That he is the plaintiff in the above entitled action.38

II. That as this deponent is informed and believes, one W. W. died on or about seized of the mortgaged premises mentioned in [or, of an undivided share in the premises of which partition is sought by] the complaint herein; and the names and residences of his widow and heirs at law are unknown to this plaintiff, and cannot be ascertained by him, although he has made. diligent inquires for that purpose [stating what].39 That their interest in the premises is that to which said W. W. if living would have been entitled. [Append affidavit as to search, as in Form No. 408.]

III. That no previous application [etc., as in end of Form No. 393.]