The right of the plaintiff to recover in this action depends upon the construction to be placed on section 135 of the Code of Procedure.
In Carleton v. Carleton (85 N.Y. 313), upon which the respondent relies, the affidavit stated, "that defendant has not resided in the State of New York since March, 1877, and deponent is advised and believes is now a resident of San Francisco, California," and it was held, that this was not sufficient under the Code of Procedure (§ 135), to authorize the granting of the order; that it was merely an allegation of non-residence, and did not tend to establish that defendant could not, after due diligence, be found within the State.
It will be seen that in the case cited the affidavit as to residence is upon information and belief and does not show positively and distinctly that the defendant was a non-resident. Considerable stress is laid upon this fact, and in the opinion it is said: "Cases may arise where the proof of residence in a distant State at the very time, and of an absolute location there, would be so strong and conclusive as to render it entirely apparent that no act of diligence would be of any avail; and if the affidavit here had stated positively and distinctly that the defendant was at the time not only a resident of the State of California, but was then actually living in that State, there would be ground for claiming that due diligence would be unavailing."
It would thus seem that where the proof of non-residence is clear and conclusive, and that the defendant is living out of the State and in a distant State, there may be strong reasons for holding that proof of due diligence is not required and a different result arrived at. *Page 489
The case under consideration differs somewhat from Carleton v. Carleton (supra). The affidavit here states that the defendants "cannot, after due diligence, be found within this State" (they being residents of other States as therein named), and "that the summons herein was duly issued for said defendants, but cannot be served personally upon them by reason of such non-residence." Here is a clear statement that the defendants are non-residents of the State and reside in other and distant States, and that the summons which has been issued cannot be served by reason thereof. This supplies the defect in the affidavit in the case cited in reference to the proof of non-residence and establishes beyond question that fact, making the case considered stronger in this respect than the one cited. The allegation as to non-residence is preceded by the statement that the defendants cannot, after due diligence, be found within this State, which, taken in connection with the subsequent averment as to non-residence, may be considered, we think, as a statement either that an attempt has been made to find the defendants, or at least that they are so remotely located out of the State and have such a fixed residence that it would be impossible after due diligence to find them within the State for the purpose of serving the summons on them.
The statement as to due diligence is not absolutely an allegation of a conclusion of law, or an opinion, but, in connection with what follows, a statement of facts which tend to establish that due diligence has been used.
The two cases are clearly distinguishable, and we think the affidavit here contained allegations sufficient to call upon the judicial mind to determine whether due diligence had been employed to find the defendants, for the purpose of serving the summons issued. In granting the order, the judge so held, and as the language employed will bear this interpretation, the court should not, certainly in a collateral proceeding, determine that the affidavit was entirely defective and set aside the order.
The order of the General Term should be reversed and the judgment of Special Term affirmed.
All concur.
Order reversed, and judgment affirmed. *Page 490