McLeod v. Moore

Ingraham, J.

Section 439 of the Code provides that the order of publication must be founded upon proof by affidavit that the plaintiff lias been or will be unable, with due diligence, to make personal service of the summons. The only facts' alleged tending to show that the plaintiff had ‘been unable to serve the summons within the state was that defendant was a non-resident of this state, but was a resident of the state of Pennsylvania, and has a place of business at No. 44 North Fifth street, Philadelphia. That may be true, and yet the defendant might at the time have been in the city of New York, and the plaintiff have had knowledge of that fact. The allegation that the plaintiff had been and would be unable to serve the defendant within the state, was a mere conclusion, and not proof of the fact. The cases cited by the plaintiff are cases in which the jurisdiction of the court to make the order was attacked, and a different rule applies when the motion to vacate the order was made by the defendant in the action. In Smith v. Mahon, 2 Civ. Proc. R. 55, Davis, P. J., says that in that case he would have grave doubts of the sufficiency of the affidavit if the motion had been made by the defendant. In Bixby v. Smith, 3 Hun, 62, the general term held that an affidavit that the defendant was a non-resident, and could not, with due diligence, be found within the state, was not sufficient to support the order. This decision is conclusive upon this motion, and the order must therefore be vacated. If, however, the plaintiff des'ires to appeal, I will stay all proceedings under the order until such appeal can be heard.