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FORM No. 408.
Affidavit of unsuccessful search for unknown heirs.40
[Title of court and action.]
W'. M. J., being duly sworn, says:
and his business is to search for and discover parties, and to serve legal papers; that he has been eight years engaged in that business, and considers himself an adept and expert therein).
II. That he has for more than [one year] last past been diligently seeking and trying to find the above-named defendant P. S., in order to serve legal papers upon him; that he has visited and conversed with all persons bearing that name found in the New York and Brooklyn directories, for the several years from 19 to 19
inclusive, and that neither of said persons is the P. S., defendant in this action, nor to their knowledge in any way related to him, nor could he learn from any of them whether the said defendant was still living, nor whether he ever had a wife, nor, if dead, who were his heirs, devisees or next of kin, nor whether he left a widow.
III. That he has also made diligent inquiry of numerous persons residing upon and in the vicinity of the property described in the complaint in this action, and of many others who, he believes, would be most likely to have knowledge of the whereabouts of said defendant, and as to whether he was still living or dead and who were his relatives; and that the only information he could obtain from any of such persons, in all such conversations and inquiries, is that the said defendant P. S. went out west about the vear 19 and has not been seen nor heard from since, all which deponent believes to be true.
IV. That neither the said P. S., nor any person in his behalf, has paid the taxes on the said lot since about the time of his departure as aforesaid.
V. That no previous application [etc., as in end of Form 393]. [.Jurat.]
40 This form, in connection with the
sustained in Wheeler !. Scully, 50 N. Y. 667.
FORM No. 409.
Affidavit in corroboration of the foregoing.
A. S. 1., Jr., being duly sworn, says:
and resides at
II. That he has made diligent inquiry of numerous persons residing upon and in the vicinity of the lot mentioned in the complaint in this action, to ascertain the whereabouts of the defendant P. S., and as to whether he is still living, whether he had a wife, and, if dead, as to whether he left a widow, and who were his heirs, devisees and next of kin; and that, among others, he has inquired of S. S., formerly the widow of W. D. L., deceased, to whom said defendant P. S. made and executed the mortgage referred to in the complaint in this action.
III. That the said S. S. informed this deponent, and deponent verily believes, that said P. S. left here to go to some of the western States shortly after he purehased the lot and made the above-mentioned mortgage; and that she had not heard from him since.
IV. That this deponent, after diligent inquiry, has been unable to ascertain from any of the persons so inquired of as above, or from any other source, anything concerning the whereabouts of the said P. S., or whether he is or is not still living, or as to who are his widow, heirs, devisees or next of kin, if dead.
V. Deponent further says, that he is the son of A. S. W., the plaintiff in this action. [Jurat.]
[ Signature.] FORM No. 410. Affidavit by plaintiff, in same case, to his ignorance. [Title of the cause.] [Venur.]
A. S. W., being duly sworn, says:
I. That he is the plaintiff in the above entitled action, which action is brought to foreclose a certain mortgage made by the said defendant P. S. to one W. D. L., to secure the sum of dollars and interest, dated the day of
19 and recorded in the office of the register of the county of
in liber of mortgages, p.
19 , and duly assigned by
the said W. D. L. to one R. M., and by said R. M. to this plaintiff, said mortgage being upon certain real estate in the city of in said county of
and described in the complaint in this action.
II. That the said P. S., if living, and his wife, if any, whose name is unknown to this plaintiff, and the widow, devisees, heirs at law, and next of kin of said P. S., if deceased, who are also unknown to this plaintiff, have an interest in this action and in the real estate to be affected thereby, said P. S. being the last known owner of the equity of redemption.
III. That deponent has caused diligent search and inquiry to be m..de by his son, A. S. W., and W. M. M., whose affidavits are hereto annexed, and by other persons, in order to ascertain the residence and whereabouts, of said P. S., and whether he is still living, whether he has a wife, and, if deceased, whether he left a widow, and who, if any, are his devisees, heirs at law, and next of kin, and the names, residences, and whereabouts of such persons.
IV. That he has also personally inquired of numerous persons [indicating them] concerning the existence, whereabouts, residences, and names of such parties, and has been unable, after such due diligence, to ascertain anything except those matters stated in the affidavit of W. M. M., annexed, and that, according to all information he has received, he verily believes that all matters in said affidavit set forth are true, and states that he will not be able with due diligence to make the service of the summons upon said persons within this State. [Jurat.]
[Signature.] [Order as in Form No. 416.]
FORM No. 411.
1. B., being duly sworn, says:
II. That this action is brought to obtain a judgment annulling [or, to obtain a divorce from — or, to obtain a separation of the parties under] the marriage mentioned in the complaint.
41 The second and third allegations verified complaint, and this summary of this Form, although their substance. in an affidavit is only a matter of conis usual, are not essential to jurisdic venient introduction thereto. tion, for the facts must appear by
III. That a cause of action therefor exists in favor of the plaintiff against the defendant upon the grounds appearing in the verified complaint in this action, which is hereto annexed.
IV. 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 on said defendant within the State [stating reasons and evidence as in Forms Nos. 390, 410, and as also appears by the affidavit of M. N., hereto annexed. 2
[V. State residence or last known place of abode, if not already stated and that said defendant is of full age — or, is a miner of the age of years.]
VI. That no previous application [etc., as in end of Form No. 393]. [Jurat.]
[Signature.] [Order as in Form No. 415.]
FORM No. 412. Affidavit to obtain order for service by publication, etc., on absent parent or
guardian, etc., of infant under fourteen; or absent committee of lunatic.43 [Title of court and action.] [Venue.]
A. B., being duly sworn, says:
I. That he is the plaintiff [or, the attorney — or, the managing clerk for the attorney or otherwise as the case may be — for the plaintiff] above-named.
42 The proof of defendant's non-res. idence ought not to rest solely upon plaintiff's affidavit. See Hall 7. Ilall, 23 Abb. N. C. 295, 10 N. Y. Supp. 223.
43 Under N. Y. Code Civ. Pro., § 438, last paragraph, as amended in 1884, if a minor under fourteen, or adjudicated lunatic, served either by publication, or personally served within the State, is in care of a parent, guardian, etc., or committee, who is without the State or not to be found, the delivery of the additional copy te the guardian or committee may be made by publication and mail. ing, as if he were a defendant.
The object of this statute is not to dispense with service (whether within the State, or by publication and mail.
ing) upon the infant or lunatic, but simply to enable the guardian or other custodian of the infant, or the committee of the lunatic, to be served similarly, notwithstanding his absence from the State. If, therefore, the infant or lunatic is also absent from the State, the appropriate form of aslidavit for serving him by publication, etc., should be used (see Forms Nos. 390 to 411), inserting such allegations as are here given in respect to the absence, etc., of the guardian or committee. This form above given, as it stands, is appropriate only to the case where the infant or lunatic can be served within the State, but the guardian, etc., or committee cannot.
II. [If the action affects specific property, it is well, but not necessary to jurisdiction, to allege it, as in paragraph II of l'orm No. 406; or if to annul marriage, as in paragraphs II and III, Form No. 411.]
III. That the defendant Y. Z. is an infant under the age of fourteen years, to wit: about the age of years, and [here state the facts as to parents or guardian, and that there is none within the State, who has the care and control of him, or with whom he resides, or in whose service he is employed, for instance thus:] that his general guardian is F. G., who was, as deponent is informed and believes, duly appointed by an order or decree of the Court, on or about the
19 That said guardian resides at No.
street, in the State of ; that the parents of said Y. Z. are both dead, and he is now residing with T. Z., at No.
street, in the city of and county of in the State of
[here allege absence or other circumstances which would, if the guardian, etc., were the defendant, justify service by publication, as in Forms Nos. 390 to 404, substituting, of course,“ said guardian,” etc., for “defendant”].
[Or in case of a lunatic] III. That, as deponent is informed and believes, the defendant Y. Z. was, on or about the day of 19 at
by an order of the Court, duly found to be an incompetent person, and F. G. was thereupon duly appointed as his committee by an order duly made by said court on the day of
19. That said committee [here allege facts such as would justify an order of publication against him were he the defendant, as in Forms Nos. 390 to 404].
IV. That no previous application for an order for service or delivery of a copy of the summons and complaint herein, upon or to said guardian [or, committee] by publication and mailing, or without the State, has been made herein [except, etc.44]. [Jurat.]
44 See p. 116 of this volume, paragraph 84 and p. 171.