• I am of opinion that the affidavit upon. which the order for service by publication was granted was insufficientto give the court-jurisdiction. Sufficient facts were not shown upon which to predicate a judgment that due diligence had been used and that the defendant could not be found within the- jurisdiction of the court. It did not appear that the summons had'been issued to the sheriff with directions to serve it and that it had been returned with a certificate that the defendant could not be, found, nor did it even appear that the directory had been consulted to ascertain whether or not the defendant resided in the city: It appears that there was
a house on the premis.es, but it is not shown that any attempt was made to obtain any information there concerning her whereabouts. It appears merely that the clerk of the attorney for the plaintiff was of opinion that he knew of no source to . obtain information concerning her whereabouts except by applying tc> real estate agents who apparently had a sign on the premises; and jurisdiction is sought to be sustained upon the unverified declarations of one of these agents. Even the agency of the real estate agents rests on the declarations of one of the members of the firm and on the.fact that they had a sign upon the premises. It was not shown that the plaintiff or his attorneys were without knowledge .as to the residence or. whereabouts of the defendant. I think that the foundation -for the service by publication was not as well laid as in Empire City Savings Bank v. Silleck (98 App. Div. 139; affd., 180 N. Y. 541) where it was held that the court did not acquire .jurisdiction. I am also, of;the opinion that the proof does not come up to-the/requirements.-of the rule prescribed in Kennedy v. Lamb (182 N. Y. 228), : It" was-not shown by competent evidence that :the, defendant .was," a n On-resident, and there was no competent,,ev idénée. that she could riot by *321the exercise of due diligence be found within the State. (See Steele v. Raphael, 37 N. Y. St. Repr. 623; Everitt v. Park, 2 N. Y. Ann. Cas. 205; note id. p. 58; Mowry v. Sanborn, 68 N. Y. 153; Steuben County Bank v. Alberger, 78 id. 252; Murphy v. Jack, 142 id. 215.)
I, therefore, vote for the affirmance of the judgment.
Judgment reversed, new trial ordered, costs to appellant to abide event.