This case falls within the principle laid down by the Court of Appeals in the case of Carleton v. Carleton (85 N. Y., 313). The *37affidavit upon which' the order was based, so far as it concerns the question here, is as follows : The said Sarah Hurlburt, and others, cannot, after due diligence, be found within the State; they being residents of Baltimore, in the State of Maryland. Bat the summons herein was duly issued for said defendants, but cannot be served personally upon them by reason of such non-residence. The first part of the affidavit is the equivalent of saying that the defendants, being residents of Baltimore, cannot be found within, the State. It is a conclusion or opinion formed from the fact that the defendants were non-residents. Neither does the bare statement that the defendants cannot after due diligence be found, state or imply that any effort or attempt had been made to serve within the State. It in no sense is a statement of fact, but is purely the statement of the opinion of the affiant. The last part of the, affidavit is equally deficient of any necessary statement of fact to confer jurisdiction for granting the order stating that “ the summons herein was duly issued for said defendants,” does not imply any diligence to serve it. No fact is stated in the affidavit from which the judge, to whom it was presented, might infer that an attempt had been made to serve within the State. It does not even state that any attempt was made.
The law requires proof that a defendant cannot be found after due diligence, or proof of such a state of facts as to show that diligence would .be of no avail in affecting a service within the State. Proof as to where the defendant actually was at the time, would excuse any effort to serve at another place.
It is plain under the case of Carleton v. Carleton that merely alleging that a defendant is a non-resident affords no ground for assuming that due diligence has been used.
It is not necessary to determine whether it would have been sufficient if the affidavit had positively stated that “ due diligence had been used ” or whether a statement of the facts constituting due diligence was essential, as no such proof is contained in the affidavit.
If these views are correct, it follows that the judgment must be reversed, and a new trial granted, costs to abide event.
Present — BakNAkd, P. J., Dykmau and Pkatt, JJ.Judgment reversed, and new trial granted, costs to abide event.