Page images
PDF
EPUB

FORM No. 413. Order for service by publication, etc., against non-resident or foreign corpora

tion. 45 [Tille of court and action.]

Upon the amended — or, supplemental] summons annexed** and the duly verified (amended — or, supplemental] complaint herein, now presented to me [or, of which a copy is hereto annexed47 or, which have been duly filed* herein, and are now presented to me), showing a sufficient cause of action against th: 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, 99 for instance thus] the annexed affidavit of A. B., verified the

day of 19 and certificate of M. X., sheriff of

dated the day of

19

by which plaintiff has made proof to my satisfaction,50 *

[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 age or, is a minor above the

age
of fourteen years

or if under that age, or an adjudicated lunatic, and the parent or guardian,

45 Under N. Y. Code Civ. Pro., 57 Mo. 160, not to vitiate a sale of $ 440, this order must not be made by land when questioned collaterally. the court (see p. 89 of this volume) 46 The order should refer to the but by a judge of the court, or by the summons (Rawdon v. Corbin, 3 How. county judge of the county where the Pr. 416, 417), and if issued before a action is triable; that is to say (if summons, it is premature. Little r. no order changing place of trial has Currie, 5 Nev, 90, citing People r'. been made), the county named in the Fluber, 20 Cal. 81. summons and complaint (p. 101 of 47 Annexing a copy is not necessary this volume, paragraph 53).

if the original be produced. The mistake of entitling the order 48 In Anderson v. Coburn, 27 Wis. as a court order is, however, amend 558, it was held that under the Wis. able (p. 215 of this volume).

consin statute, which requires that in The fact that the order has a cap. case of publication “the complaint tion apparently showing that it had shall be first filed, and the summons been granted at the Special Term, and as published shall state the time and was signed with the initials of the place of such filing "- omission to file judge with a direction to enter, does until a day less than six weeks before not make it any the less a judge's the last publication, was fatal, and i order where it was in fact granted by sale under the judgment was void. a judge. Volz 1. Steiner, 67 App. In Manning v. Heady, 64 Wis. 630, Div. 504, 73 N. Y. Supr. 1006; Low 25 N. W. Rep. 1, where the order reerre v. Owens, 14 App. Div. 215, 43 cited filing, but the clerk's file mark N. Y. Supp. 467; Regan r. Fraube, 16 showed that the filing was long afterDaly, 152, 9 N. Y. Supp. 495, 18 Civ. ward, held, citing Cummings v. Tabor, Pro. Rep. 332.

61 Wis. 185, 21 N. W. Rep. 72, that That the published order purported the servicr was defective. to have been made by the clerk, the 49 As to the importance of this, see original having been made by the p. 223 of this volume. court, was held, in Johnson v. Gage, 50 As to importance of recitals of

facts found, see p. 225 of this volume.

[graphic]

eic., or committee, cannot be served within the State, recite the fact as if such third person were a defendant-l],

[Or if a foreign corporation) that said defendant is a foreigu 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

county of

in said [State), [And in either case continuing thus] † and that the plaintiff Thas 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, 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,62 viz., in the [name of papep53], 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. 5']

54

51 See Form No. 412.

in the order, but omission of it is not 52 Omission to state that the paper essential to service by publication. designated is a newspaper (although O'Neil v. Bender, 30 Hun, 204; Hatdeemed an irregularity in this case ) field v. Malcolm, 71 Hun, 51, 24 N. Y. does not vitiate the judgment as Supp. 596; Matter of Field, 131 N. Y. against collateral attack. Oswald v.

184. The order should in all cases Kampmann (Tex, Cir., 1886), 28 Fed. prescribe a time for publication, aduRep. 36. See, also, article on PUBLI- ing optional leave to serve personally CATION, p. 341 of this volume.

instead; and then, if personal service It is not necessary to state that be made without the State, the time the papers designated are, in the for answering is to be computed by words of the statute, “most likely to referring to the time fixed for publigive notice to the defendants." Green cation. As to completing publicar. Squires, 20 Hun, 15. See p. 356 of tion when once commenced in an atthis volume, and note.

tachment case,

compare, however, 53 Care in accuracy of name in the N. Y. Code Civ. Pro., $ 638. designation is desirable.

57 Ludden v. Degner, 14 App. Div. But a slight variance may be disre- 397, 43 N. Y. Supp. 908; McCool v. garded.

Waters 1. Waters, 7 Misc. Boller, 14 Hun, 73. 519. 27 N. Y. Supp. 1004.

58 The omission of the words “ with: 54 The judge is free to designate out the State” would not vitiate, any newspaper; the “state paper because service within the State is has been abolished. Executive Law good, irrespective of an order. (L. 1893, chap. 248), $ 74.

59 It was held in Morrison 1. Nat. 55 Or more if the judge deems it Kubber Co., 13 N. Y. Civ. Pro. Rep. reasonable to require it. N. Y. Code 233, that the order need not specify Civ. Pro., $ 440.

the officers, and if service was made 56. The option is usually expressed upon a proper officer, it was effective. 61 Adapted from Littlejohn v. Leffingwell. 34 Arp. Div. 185, 54 N. Y. Supp. 536.

[graphic]

2. That on or before the day of the first publication, as afore said, the plaintiff deposit in the general post-office in the Borough of Manhattan, in the County of New York - or, in the post-office at in the county of

, in this State]a cops

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 de fendants respectively, 61 at the places designated below, viz. :here add list of the defendants to be so served, with their respective addresses].62

[If delivery of copy to a third person, as next friend of an infant, or of an insane person, etc., is required under SS 427-429, or $ 438, last clause, add83] And it is further ordered, that a copy of said summons and complaint, with this order, be personally de livered to and left with M. N., of

, on behalf of the de fendant 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 li. N.

[Where no address is known64] And it satisfactorily appearing to me by said affidavitses 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.667

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 1. Powers, 43 Ann. Div. 178, 59 N. Y. Supp. 314; Ver Planck v. Godfrey, 31 Misc. 54, 64 N. Y. Supp. 545, aff’d, 49 App. Div. 648.

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.

Tetes v. Volmer, 28 N. Y. St. Rep. 317.

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 dis. pensing with mailing. Union Trust

63 Whether omission of this diret tion is fatal, see Home Tus. Co. . Head, 30 Hun, 405, decided, howerer, before the amendment of 1884.

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

65 Omitting to refer here to the afidavits was held, in Green e. Squires 20 Ilun, 15, not to vitiate the order.

66 The order for publication, etc: must be filed on or before the first day of publishing (N. Y. Code Civ. Pro., $ 442), and before serving without the State (Id., 8 443). Publication must be commenced in each paper, or personal service without the State made, within three months after the order is granted (Id., 8 441). 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 u. Wallach, 109 App. Div. 718, 96 N. Y. Supp. 543.

[graphic]

FORM No. 414. Order for service by publication, etc., in action affecting specific property.07 [Title of court and action.]

l'pon the [amended — or, supplemental] summons and the duly verified (amended — or, supplemental] 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), which complaint demands judgment that the de fendants 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 19 and the certificate of S. S., sheriff of the county of dated the day of

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 but cannot, after due diligence, be found within the State.

[ocr errors]

Where a lis pendens is filed, publication under an order for publication must be commenced, or personal service 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 uispenses 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).

[graphic]
[ocr errors]

[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 résidence, 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 and State 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 , and county of

in the aforesaid

[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. 2. is of full age [or, is a minor above the age of fourteen years - or, about the

age

years). + [And in either case adding887 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).

of

FORM No. 415. Order for service by publication, etc., in divorce.69 [Title of court and action.0]

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 suficient cause of action in favor of the plaintiff and against the de fendant 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 Cir. Pro., $ 1774.

TO Not a court order. See note to Form No. 413.

« PreviousContinue »