affidavit of A. B. verified the

day of

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

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, or, about the age of ]; 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.]

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 ] that said defendant Y. Z. is a resident of this State, to wit [specifying particular address], but cannot, after due dili

gence, be found within this State, and has departed therefrom [or, keeps himself concealed within this State], with intent to defraud 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 pursue Form No. 414; if divorce, Form No. 415; in other cases, Form No. 413; but may substitute for the words between the * and ] 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 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

FORM No. 422.

Notice to be subjoined to summons as published, or as served personally without the State.72

To [here name only the defendants served by publicationTM3]:

The foregoing summons [or, amendedor, supplemental summons] is served upon you by publication [or, served upon you without the State of New York4], pursuant to an order of [naming the judge and his official title, for instance, Hon. Noah Davis, a justice of the Supreme Court of the State of New York], dated the day of 19 [date of order], and filed on that day [or state day"] with [a copy of] the com

75

71 This Form is from a precedent in the First Department, where the service of summons was ordered to be thus maue; but the order should be in the alternative, for publication or service without the State, at plaintiff's option.

72 Not required to be included with the summons, etc., mailed, but only in the publication, and win a copy, if a copy be delivered without the State in lieu of publication. La Farge v. Mitchell, 4 Monthly L. Bul. 36.

73 The summons itself must contain the names of all of the defendants, and an omission of a defendant's name is not cured by addressing to him as a defendant the subjoined notice. Bowler r. Ennis, 46 App. Div. 309, 61 N. Y. Supp. 686. But in Brenen v. North, 7 App. Div. 79, 39 N. Y. Supp. 975, it was held a sufficient publication where the summons as published contained the name of the first defendant, and of the defend

76

ant to be served. Naming all defendants in the notice does not vitiate as to those properly named. Loring v. Binney, 38 Hun, 152, aff'd, 101 N. Y. 623.

74 A mistake in using the wrong one of these two alternative clauses was held not fatal in Loring v. Binney, (above). Omitting the words "without the State" held not to vitiate the service. McCully v. Heller, 66 How. 468.

75 Error in the recital of the name of the justice in the notice does not deprive the court of its jurisdiction. La Farge v. Mitchell (above).

76 Omission to state date of order held not fatal to jurisdiction by attachment. Orvis . Goldschmidt, 2 Civ. Pro. Rep. (Browne) 314, 64 How. Pr. 71.

77 Date of filing complaint essential. Smyth r. Rowe, 4 Monthly L. Bul. 60; S. P., Ford v. Wilson, Tappan (Ohio), 235.

78

[or,

plaint, in the office of the clerk of the county of 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 above, add: the original complaint having been filed in said office on the

day of

19 1

[In partition, 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 prejudice to the owners, then for a sales 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,82 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.

78 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 county. Denman v. 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 McCormick r. Paddock (Nebr., 1886), 30 N. W. Rep. 603.

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

82 See, for cases where errors have been disregarded or amended, Gibbon v. Freel, 65 How. Pr. 273; Sharp t. Daugney, 33 Cal. 505; Fanning r. Krapfl, 61 Iowa, 417, 14 N. W. Rep. 727, 16 id. 293; Morgan v. Woods, 33 Ind. 23; Buchanan r. Roy's Lessee, 2 Omo St. 251; Smyth r. 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 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 [amendedor, supplemental] complaint in this action [copies whereof are hereto annexed], and on the same day [or state date] filed the order dated the

day of 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 [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 of the clerk of this court].

day of

19

[or,

[Jurat.]

FORM No. 424.

[Signature.]

Affidavit84 of printer or publisher, etc., to publication.

[Title of court and action.8]

[Venue.86]

M. N., being duly sworn, says:

87

I. That he is the printer [or, the publisher-or, the fore- or, the principal clerk-or, the only clerk of the printer or, of the publisher88] of the a newspaper published

man

at

within this State.

89

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 sanctioned by statute. If an affidavit is refused on tender of legal fees, take deposition under section 885 of ne Code. Eberle v. Krebs, 50 App. Div. 450, 64 N. Y. Supp. 246.

85 Omission of title not fatal if affidavit refers to the order.

86 Error in venue held not fatal in Wood v. Blythe, 46 Wis. 650; s. P., p. 13 of this volume, note 46.

87 Merely describing deponent as printer, etc., without alleging that he is such held, insufficient. Steinbach v. Leese, 27 Cal. 295.

88 Under N. Y. Code Civ. Pro., § 444, first clause, "Proof of the publication of the summons and notice must be made by the affidavit of the printer or publisher, or his foreman or principal clerk." As to what devia