Page images
PDF
EPUB
[ocr errors]
[ocr errors]
[ocr errors]

affidavit of A. B. verified the

day of

19 and the certificate of S. S., the sheriff of the county of

dated the day of

19 by which the plaintiff has made proof to my satisfaction [here may recite briefly non-residence, concealment, etc., or other facts relied on; see Form No. 413, adding in either case] that said Y. Z. is of full age [or, is a minor above the

age
of fourteen years,
about the age of

1; and that the plainaiff 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 O. R., attorney for plaintiff,

ORDERED [etc., as in Form No. 413.]

or,

FORM No. 416.

Order for service by publication, etc., against unknown defendant. [If the action affects specific property, it will be better to pursue Form No. 414, in other cases Form No. 413; but substitute for the words between the * and the , in either case, a statement of plaintiff's ignorance, for instance, thus] that the defendant designated in the summons as John Doe [and his name and residence] remain[s] unknown to the plaintiff after diligent inquiry.

FORM No. 417. Order for service by publication, etc., against one whose residence cannot be

ascertained. [If the action affects specific property it will be better to pursue Form No. 414; in divorce, Form No. 415; and in other cases, Form No. 413; but substitute for the words between the * and the t, in either case, a statement of plaintiff's ignorance, for instance, thus] that the plaintiff is unable, after diligent inquiry, to ascertain whether the defendant Y. Z. is or is not a resident of this State.

FORM No. 418.

Order for service by publication, etc., against a resident who has departed or

conceals himself. [If the action affects specific property it will be better to pursue Form No. 414; if divorce, Form No. 415; in other cases, Form No. 413; but substitute in place of the words between the * and t] that said defendant Y. Z. is a resident of this State, to wit [specifying particular address], but cannot, after due dili

[graphic]

Form No. 413-14; if divorce property it will

gence, be found within this State, and has departed therefrom sor, keeps himself concealed within this State], with intent to de fraud his creditors [or, with intent to avoid service of a summons, or both.]

[Direction to mail will be to residence or last place of abode, or both.]

FORM No. 419. Order for service by publication, etc., against an adult resident absent from

the State of New York. [If the action affects specific property it will be better to pur sue Form No. 414; if divorce, Form No. 415; in other cases, Form No. 413; but may substitute for the words between the * and t] that said defendant Y. Z. is a resident of this State, to wit, at No. , , in the city of , and has been continuously without the State of New York more than six months next before the granting of this order, and has not made a designation of a person upon whom to serve a summons in his behalf, as prescribed by the Code of Civil Procedure {or, and that his designation of a person upon whom to serve a summons in his behalf, heretofore made by him under the Code of Civil Procedure, no longer remains in force — or, and that service of the summons herein upon the person heretofore designated by him, under the Code of Civil Procedure, upon whom to serve a summons in his behalf, cannot be made within the State after diligent effort.]

[Direction to mail will be to residence or last place of abode, or both.]

FORM No. 420. Order for service by publication, etc., to save case from statute of limitations.

[If the action affects specific property it will be better to pursue Form No. 414; if divorce, Form No. 415 ; in other cases, Form No. 413; but may substitute for the words between the * and the t] that said defendant Y. Z. is a resident of this State, to wit, of No. street, in the city of , and county of

; and that an attempt to commence this action against the said defendant, as required in Chapter Fourth of the Code of Civil Procedure of this State, was made on the day of

, 19 , and before the expiration of the limitation applicable thereto, as fixed in that chapter; and that the said limitation would have expired within sixty days next preceding the making of this order and the application therefor, if the time had not been extended by the said attempt to commence

this action; and that personal service of the summons herein upon said defendant cannot with due diligence be made within the State.

FORM No. 421. Order for service on convict in prison, without the State 71 [As in other Forms, inserting in recitals] that defendant herein is a convict now confined in the State penitentiary at in the State of

[And insert in ordering part] that service of said be made upon defendant Y. Z. personally, without this State, at his present abode in said penitentiary, in the State of

Davis, 75

day of

FORM No. 422. Notice to be subjoined to summons as published, or as served personally with

out the State.72 To [here name only the defendants served by publication73] :

The foregoing summons [or, amended -- or, supplemental summons] is served upon you by publication [or, served upon you without the State of New York74], pursuant to an order of [naming the judge and his official title, for instance, Hon. Noah

a justice of the Supreme Court of the State of New York), dated the

19 76 [date of order], and filed on that day (or state day77] with [a copy of] the com

71 This Form is from a precedent in ant to be served. Naming all defendthe First Department, where the ser ants in the notice does not vitiate as vice of summons was ordered to be to those properly named. Loring v. thus maue; but the order should be Binney, 38 Hun, 152, aff'd, 101 N. Y. in the alternative, for publication or 623. service without the State, at plain 74 A mistake in using the wrong one tiff's option.

of these two alternative clauses was 72 Not required to be included with held not fatal in Loring 1. Binney, the summons, etc., mailed, but only (above). Omitting the words “ with. in the publication, and win a copy, out the Stateheld not to vitiate the if a copy be delivered without the service. McCully 1. Heller, 66 How. State in lieu of publication. La 468. Farge v. Mitchell, 4 Monthly L. Bul. 75 Error in the recital of the name 36.

of the justice in the notice does not 73 The summons itself must contain deprive the court of its jurisdiction. the names of all of the defendants, La Farge v. Mitchell (abore). and an

omission of a defendant's 76 Omission to state date of order name is not cured by addressing to held not fatal to jurisdiction by athim as a defendant the subjoined no. tachment. Orvis r'. Goldschmidt, 2 tice. Bowler 1. Ennis, 46 App. Div. Civ. Pro. Rep. (Browne) 314, 64 How. 309, 61 N. Y. Supp. 686. But in Pr. 71. Brenen 1. North, 7 App. Div. 79, 39 77 Date of filing complaint essential. N. Y. Supp. 975, it was held a suffi Smyth 2. Rowe, 4 Monthly L. Bul. 60; cient publication where the summons S. P., Ford v. Wilson, Tappan (Ohio), as published contained the name of 235. the first defendant, and of the defend

on the

plaint, in the office of the clerk of the county78 of

[or, the office of the clerk of the

court], at the County Court House [or, City Hall - as the case may be], in the city [and county] of

in said State. [If a copy was used abore, add: the original complaint having been filed in said office day of

19.] [In partition,19 add: The object of this action is to make partition according to the respective rights of the parties, and if it appear that partition cannot be made without great prejndice to the owners, then for a sale80 of the following described property

add brief description.] [Date.]

[Signature and address of],

Plaintiff's attorney. 81

Or, Plaintiff in person.] [Accuracy in publication of summons and notice being important,92 it is well to direct publication (for mode of doing which see p. 355 of this volume) once more than the statute requires, so as to have, immediately on the appearance of the first publication, convenient opportunity to correct any error.]

FORM No. 423. Affidavit of filing before publication or service.83 [Title of court and action.] [Venue.]

M. N., being duly sworn, says:

I. That he is the [managing clerk in the office of the] attor. ney for the plaintiff in this action.

T8 A notice stating that the order was issued by the special county judge of a specified county, and that the summons was filed with the complaint, held to sufficiently give notice that the summons was filed in the clerk's office of that county, taken in connection with the statement in the summons that the action was in the Supreme Court, and triable in that cowity. Denman

1. Maguire, 101 N. Y. 161.

79 N. Y. Code Civ. Pro., $ 1541.

80 The omission to state that the action was for a sale, in the alternative, was held not to vitiate the notice, in Me('ormick Paddock (Nebr., 1886), 30 N. W. Rep. 603.

81 The omission of the attorney to subscribe the nouce, held not fatal to jurisdiction by attachment. Orvis o. Goldschmidt (above).

82 See, for cases where errors have been disregarded or amended, Gibbon v. Freel, 65 How. Pr. 273; Sharp 1. Daugney, 33 Cal. 505; Fanning r. Krapil, 61 Iowa, 417, 14 N. W. Rer. 727, 16 id. 293: organ r. Woods, 33 Ind. 23; Buchanan 1. Roy's Lessee,

Ono St. 251; Smyth t. Rowe, 4 Monthly L. Bul. 60.

83 The file mark upon the papers will usually establish the fact and date of filing.

day of

II. That on the

day of

19 , [which must be on or before the day of first publication, or before service without the State], he duly filed the (amended — or, supplemental] summons and duly verified (amended --- or, supplemental] complaint in this action (copies whereof are hereto annexed], and on the same day (or state date] filed the order dated the 19 allowing service of said summons upon the defendant Y. Z. [or, upon the father - or, guardian - or, committee, etc., of the defendant Y. Z.] by publication, or without the State, together with the affidavit of A. B., dated the day of

19 [and the certificate of S. D., dated, etc.), on which the said order was made, in the office of the clerk of the county of [or, of the clerk of this court]. [Jurat.]

[Signature.] FORM No. 424. Affidavit84 of printer or publisher, etc., to publication, [Title of court and action.85] [Venue.88]

M. N., being duly sworn, says:

I. That he is87 the printer [or, the publisher — or, the fore man - or, the principal clerk — or, the only clerk of the printer or, of the publisher88] of the

a newspaper published at

89

within this State.

II. That the summons in this action, and the notice thereto appended,90 printed copies whereof are hereto annexed, were pub

84 In some States a certificate is tion from the statute words will not sanctioned by statute. If an affidavit vitiate, see p. 361 of this volume, and is refused on tender of legal fees, take Waters v. Waters, 7 Misc. 519, 27 deposition under section 885 of we N. Y. Supp. 1004 (holding manCode. Eberle v. Krebs, 50 App. Div. ager a proper person); Palmer . 450, 64 N. Y. Supp. 246.

McCormick, 28 Fed. Rep. 541 (holding 85 Omission of title not fatal if afli. “proprietor” equivalent to "pubdavit refers to the order.

lisher"), and Quivey v. Porter, 37 86 Error in venue held not fatal in Cal. 458, 464 (holding it equivalent Wood v. Blythe, 46 Wis. 650; S. P., to printer”). p. 13 of this volume, note 46.

89 See p. 362 of this volume. See, 87 Merely describing deponent as also, Sage 1. Central R. R. Co. of printer, etc., without alleging that he Iowa (U. S.), 8 Repr. 135, holding is such — held, insufficient. Steinbach publication in a paper in which the v. Leese, 27 Cal. 295.

pa per named in order had meanwhile 88 Under N. Y. Code Civ. Pro., been merged, a substantial compliance. $444, first clause, “ Proof of the pub 90 The allidavit ought to specify Jication of the summons and notice both summons and notice. See Domust be made by the affidavit of the heny v. Worden, 75 App. Div. 47, 53, printer or publisher, or his foreman 77 N. Y. Supp. 959. or principal clerk.” As to what devia

« PreviousContinue »