FORM No. 413.

Order for service by publication, etc., against non-resident or foreign corpora tion.45

[Title of court and action.]

Upon the [amendedor, supplemental] summous annexed" and the duly verified [amendedor, supplemental] complaint herein, now presented to me [or, of which a copy is hereto annexedor, which have been duly filed's herein, and are now presented to me], showing a sufficient cause of action against thi defendant [naming or, if unknown, describing the defendant to be served, as in the summons], and upon [here mention all the other papers on which the application is made, for instance thus] the annexed affidavit of A. B., verified the 19 , and certificate of M. N., sheriff of day of satisfaction, 50*

49

day of dated the

19 by which plaintiff has made proof to my

[Where defendant is a non-resident, continue thus] that said defendant is not a resident of this State [and, if option to make personal service is to be given by the order, add, and is of full or, is a minor above the age of fourteen years or if under that age, or an adjudicated lunatic, and the parent or guardian,

age

45 Under N. Y. Code Civ. Pro., § 440, this order must not be made by the court (see p. 89 of this volume) but by a judge of the court, or by the county judge of the county where the action is triable; that is to say (if no order changing place of trial has been made), the county named in the summons and complaint (p. 101 of this volume, paragraph 53).

The mistake of entitling the order as a court order is, however, amendable (p. 215 of this volume).

The fact that the order has a caption apparently showing that it had been granted at the Special Term, and was signed with the initials of the judge with a direction to enter, does not make it any the less a judge's order where it was in fact granted by a judge. Volz r. Steiner, 67 App. Div. 504, 73 N. Y. Supp. 1006; Lowerre v. Owens, 14 App. Div. 215, 43 N. Y. Supp. 467; Regan v. Fraube, 16 Daly, 152, 9 N. Y. Supp. 495, 18 Civ. Pro. Rep. 332.

That the published order purported to have been made by the clerk, the original having been made by the court, was held, in Johnson v. Gage,

57 Mo. 160, not to vitiate a sale of land when questioned collaterally.

46 The order should refer to the summons (Rawdon v. Corbin, 3 How. Pr. 416, 417), and if issued before a summons, it is premature. Little r. Currie, 5 Nev. 90, citing People r. Huber, 20 Cal. 81.

47 Annexing a copy is not necessary if the original be produced.

66

48 In Anderson v. Coburn, 27 Wis. 558, it was held that under the Wisconsin statute, which requires that in case of publication the complaint shall be first filed, and the summons as published shall state the time and place of such filing"- omission to file until a day less than six weeks before the last publication, was fatal, and i sale under the judgment was void.

In Manning v. Heady, 64 Wis. 630, 25 N. W. Rep. 1, where the order recited filing, but the clerk's file mark showed that the filing was long afterward, held, citing Cummings v. Tabor, 61 Wis. 185, 21 N. W. Rep. 72, that the service was defective.

49 As to the importance of this, see p. 223 of this volume.

50 As to importance of recitals of facts found, see p. 225 of this volume.

etc., or committee, cannot be served within the State, recite the fact as if such third person were a defendant1],

[Or if a foreign corporation] that said defendant is a foreign corporation, created by or under the laws of [naming State or nation], and having its place of business at No.

in said [State],

[And in either case continuing thus] and that the plaintiff [has been and] will be unable, with due diligence, to make personal service of the summons on said defendant within this State; now, on motion of Q. R., attorney for plaintiff:

54

52

ORDERED, 1. That service of the summons in the above entitled action upon said [name or description of defendant as in summons] be made by publication thereof in two newspapers, viz., in the [name of paper, published in and in the [name of another paper], published in once a week for six55 successive weeks, or at the option of the plaintiff,56 by service of said summons, and a copy of said complaint and of this order,57 without the State,58 upon the defendant Y. Z. personally [and if he is an infant under the age of 14 years, and also upon the person with whom he is sojourning- or, if a corporation, say, without the State personally upon such an officer of said defendant, the Y. Z. Co., as is specified in § 431-or, § 432 of the Code of Civil Procedure of this State.59]

51 See Form No. 412.

52 Omission to state that the paper designated is a newspaper (although deemed an irregularity in this case) does not vitiate the judgment as against collateral attack. Oswald v. Kampmann (Tex. Cir., 1886), 28 Fed. Rep. 36. See, also, article on PUBLICATION, p. 341 of this volume.

It is not necessary to state that the papers designated are, in the words of the statute, "most likely to give notice to the defendants." Green t. Squires, 20 Hun, 15. See p. 356 of this volume, and note.

53 Care in accuracy of name in the designation is desirable.

But a slight variance may be disregarded. Waters r. Waters, 7 Misc. 519. 27 N. Y. Supp. 1004.

54 The judge is free to designate any newspaper; the "state paper" has been abolished. Executive Law (L. 1893, chap. 248), § 74.

55 Or more if the judge deems it reasonable to require it. N. Y. Code Civ. Pro., § 440.

56 The option is usually expressed

in the order, but omission of it is not essential to service by publication. O'Neil v. Bender, 30 Hun, 204; Hatfield v. Malcolm, 71 Hun, 51, 24 N. Y. Supp. 596; Matter of Field, 131 N. Y. 184. The order should in all cases prescribe a time for publication, aduing optional leave to serve personally instead; and then, if personal service be made without the State, the time for answering is to be computed by referring to the time fixed for publication. As to completing publication when once commenced in an at

tachment case, compare, however, N. Y. Code Civ. Pro., § 638.

57 Ludden r. Degner. 14 App. Div. 397. 43 N. Y. Supp. 908; McCool t. Boller. 14 Iun, 73.

58 The omission of the words "without the State" would not vitiate, because service within the State is good, irrespective of an order.

59 It was held in Morrison r. Nat. Kubber Co., 13 N. Y. Civ. Pro. Rep. 233, that the order need not specify the officers, and if service was made upon a proper officer, it was effective.

at

2. That on or before the day of the first publication, as aforesaid, the plaintiff deposit in the [general post-office in the Borough of Manhattan, in the County of New York — or, in the post-office in the county of in this State] a copy of the summons and complaint hereto annexed, and of this order, contained in a securely closed postpaid wrapper, directed to said defendant Y. Z. at [giving address in full-or of several defendants are to be served, say:— sets of copies of the summons and complaint hereto annexed and of this order, each contained in a securely closed postpaid wrapper, directed to the following defendants respectively, at the places designated below, viz.:here add list of the defendants to be so served, with their respective addresses].62

61

[If delivery of copy to a third person, as next friend of an infant, or of an insane person, etc., is required under $$ 427-429, or § 438, last clause, add] And it is further ordered, that a copy of said summons and complaint, with this order, be personally delivered to and left with M. N., of , on behalf of the defendant Y. Z., and that the service of the summons herein on said Y. Z. shall not be deemed complete until it is so delivered to and left with M. N.

65

[Where no address is known] And it satisfactorily appearing to me by said affidavits that the plaintiff cannot, with reasonable diligence, ascertain a place or places where the said defendant [or, defendants or name particular one] would probably receive matter transmitted through the post-office, the deposit of any papers therein [addressed to said last named defendant] is dispensed with.

[Date.]

[Signature of judge, with official tille.] [File this order, with the papers on which it was made, before proceeding.]

60 The order is fatally defective if it fail to specify the post-office, or direct mailing of the order, or direct the mailing at time required. See Eleventh Ward Bank r. Powers, 43 App. Div. 178, 59 N. Y. Supp. 314; Ver Planek r. Godfrey, 31 Misc. 54, 64 N. Y. Supp. 545, aff'd, 49 App. Div. 648.

61 Adapted from Littlejohn r. Leffingwell, 34 App. Div. 185, 54 N. Y. Supp. 536.

62 A direction for mailing to a wrong address will not affect where the facts shown by the affidavits would have justified the court in dispensing with mailing. Union Trust

Co. v. Driggs, 62 App. Div. 213, 70 N. Y. Supp. 947. The service is void where the address in the order directed mailing to an incorrect address. Fetes t. Volmer, 28 N. Y. St. Rep. 317.

63 Whether omission of this direction is fatal, see Home Ins. Co. v. Head, 30 Hun, 405, decided, however, before the amendment of 1884.

64 Walker r. Reiff, 13 Wkly. Dig. 331.

65 Omitting to refer here to the affidavits was held, in Green r. Squires, 20 Iun. 15, not to vitiate the order.

66 The order for publication, etc., must be filed on or before the first

FORM No. 414.

Order for service by publication, etc., in action affecting specific property.07 [Title of court and action.]

Upon the [amendedor, supplemental] summons and the duly verified [amended- or, supplemental] complaint in this action, now presented to me [or, of which a copy is hereto annexedor, which have been duly filed herein, and are now presented to me], which complaint demands judgment that the defendants be excluded from a vested or contingent interest in, or lien upon, specific real [or, personal] property [or both] within the State; and that such an interest or lien in favor of either party be enforced, regulated, defined, or limited, or otherwise affecting the title to such property; and that there is stated therein a sufficient cause of action against the defendant Y. Z. [naming or, if unknown, describing him as in the summons] as a proper [and necessary] party herein; and upon [here recite other papers, for instance thus] the affidavit of A. B., verified the

day of

day of 19 and the certificate of S. S., sheriff of the county of dated the 19 by which plaintiff has made proof to my satisfaction * [here may recite briefly non-residence, concealment, etc., or other facts relied on, for instance thus] that said defendant Y. Z. is a resident of this State, to wit, at No. street, in the village of

and county of

within the State.

but cannot, after due diligence, be found

day of publishing (N. Y. Code Civ. Pro., § 442), and before serving without the State (Id., § 443). Publication must be commenced in each paper, or personal service without the State made, within three months after the order is granted (Id., § 441). Where the order was left with and retained by one of the deputy clerks attached to the Special Terms in New York county, held, that this was a filing such as complied with the statutes, and service under the order was effective. Fink v. Wallacn, 109 App. Div. 718, 96 N. Y. Supp. 543.

Where a lis pendens is filed, publication under an order for publication must be commenced, or personal serIvice within or without the State be made, within sixty days after the filing of the lis pendens (Id., § 1670). Where an attachment is issued, unless personal service be made within the

State within thirty days after granting the attachment, publication under an order for service by publication must be commenced within thirty days after the granting of the attachment; and, once commenced, must be completed, notwithstanding personal service meanwhile made without the State (Id., § 638). A voluntary general appearance within the thirty days aispenses with necessity of service. Pomeroy v. Moss, 27 Hun, 242.

Service without the State saves no time (Id., § 441), but only expense of publication.

67 It is not enough to bring the case within N. Y. Code Civ. Pro., § 438, subd. 5, as an action of this class that specific property is attached as a provisional remedy. The relief demanded in the complaint must affect specific property. On other points, see notes to Form No. 413 (above).

[Or if residence be unknown] that the residence of said Y. Z. is not known; and that the plaintiff is unable, with reasonable diligence, to ascertain his residence, or whether he is or is not a resident of this State.

[Or if a non-resident] that said defendant is not a resident of this State [but resides at No. street, in the city of

[Or if a foreign corporation] that said defendant is a foreign corporation created by or under the laws of [naming State or nation] and having its place of business at No.

street, in the city of

aforesaid

and county of

in the

[Or in case of unknown parties, for instance thus] that the names and residences of said defendants, the widow and heirs at law of U. V., deceased, mentioned in the complaint, are unknown to the plaintiff, and, after diligent inquiry, he has been unable to ascertain whether they are or are not residents of the State.

[Or in case of resident, absent, etc., as in Forms Nos. 418 to 420.]

[And in either case, except that of a corporation] that said Y. Z. is of full age [or, is a minor above the age of fourteen years or, about the age of years. t

[And in either case addings and that the plaintiff has been and will be unable, with due diligence, to make personal service of the summons on said defendant within this State; now, on motion of Q. R., attorney for plaintiff, ORDERED [etc., as in last Form].

FORM No. 415.

Order for service by publication, etc., in divorce.69

[Title of court and action.7]

Upon the summons and the duly verified complaint in this action, now presented to me [or, of which a copy is hereto annexed- or, which have been duly filed herein, and are now presented to me], the said complainant showing that there is a sufficient cause of action in favor of the plaintiff and against the defendant for a divorce [or, for a separation or, for a judgment annulling the alleged marriage] in one of the cases provided by law; and upon [here recite other papers, for instance, thus] the

68 The clause which follows is not essential in case of unknown parties.

69 The summons, as published, must contain upon its face the words "Ac

tion for divorce." See N. Y. Code Civ. Pro.. 1774.

70 Not a court order. Form No. 413.

See note to