By the Court,
Bonney, J.The defendants’ counsel has very elaborately and ably argued that the affidavit of the deputy sheriff only shows that the defendant’s residence or domicil, occupied by his family, was in Hew York; not that he personally was residing there, and as it is furthermore affirmatively shown that the defendant was actually absent from, and (as it is argued) consequently not residing in Hew York, within the meaning of the statute, no jurisdiction was acquired, to make said order of Hovember 10th.
The statute under which the order was made (Laws of 1853, p. 974,) so far as applicable to this case, provides that whenever it shall satisfactorily appear to any judge of the supreme court, by affidavit of any deputy sheriff authorized to serve any process or paper for the commencement of any action, that proper and diligent effort has been made to serve such process or paper on any defendant residing in this state, and that such defendant cannot be found, so that the same cannot be made personally by such proper diligence and effort, such judge may, by order, direct the service of any summons &c. to be made, by leaving a copy thereof at the residence of the person to be served, with some person of proper age, &c.
As I understand and interpret this act, it requires that the judge who makes the order for substituted service must be satisfied -that the defendant sought to be served resides in this state and cannot be served, for the reasons stated, before he can act in the matter; and being satisfied, he may make the order. . Such judge is consequently authorized and required to decide whether or not sufficient facts are shown, to *650confer jurisdiction; and if he decides affirmatively, that question becomes res judicata. He may have misjudged, and acted upon insufficient evidence; and for that reason the order may have been erroneously granted, and might be, upon proper application, set aside; but it will not be void.
[New York General Term, November 5, 1860.Sutherland, Bonney and Hogeboom, Justices.]
It is to be observed that this defendant does not allege or pretend that the whole amount of this judgment is not justly owing by him; nor state any equitable grounds for relief. He does not even deny that he was residing in Hew York, at the time this order was made, but merely states that he was absent from the state from the 6th of September, 1858, until (probably) the latter part of January, 1859, when he returned, and (as it appears from his examination) occupied the same house which the deputy sheriff stated to be his residence, and where his family was living when this summons and complaint were served. I think it may well be-held that the defendant was residing in the state, within the meaning and intent of the statute, when this order for substituted service was made; but I prefer to decide the question on the ground first stated.
The order appealed from should -he affirmed, with ten dollars costs.