On August 10, 1910, an order for substituted service was made authorizing service of the summons on the defendant, a non-resident corporation, in an action by a resident of this State for damages for breach of contract, and personal service of the summons and complaint was made on the defendant at Detroit, Mich., on October 19, 1910. It does not appear that defendant had at that time any property in this State. The defendant did not then appear in the action. Six months after-wards, and on February 28, 1911, personal property of defendant having come into this State, plaintiffs procured an attachment and caused it to be levied upon said personal property, and at the same time a copy of the summons and complaint was personally served, within the State, on defendant’s secretary.
On March 3, 1911, an attorney for the defendant served a notice of appearance upon plaintiffs’ attorney, which was promptly returned with a statement that the reason for its return was that it had not been served within the time required by the Code of Civil Procedure, and was served after defendant was in default. On March 16, 1911, the defendant’s attorney served upon plaintiffs’ attorney an answer which was promptly returned with a notice similar to that which had accompanied the return of the notice of appearance. Thereafter and on or about the 21-th day of March, 1911, without notice to defendant or its attorney, plaintiffs procured an order for judgment and for the assessment of damages, and on the sixth day of April, again without notice to defendant or its attorney, plaintiffs, having caused the damages to be assessed, entered the judgment now sought to be vacated. '
The position taken by the plaintiffs is that by service on defendant in Michigan the court acquired jurisdiction of the defendant, although no attachment was then issued and the defendant had no property in this State which could be levied upon under attachment; that the only limitation to be found in the Code of Civil Procedure upon the effectiveness of such service is that contained in section 1217, to the effect that judgment may not be entered where the defendant is a non-resident or a foreign corporation, and has not appeared, except upon
The order authorizing substituted service upon defendant was-made under subdivision 1 of section 438 of the Code of Civil Procedure, which authorizes such an order “where the defendant to be served is a foreign corporation.” There is tío provision, as there was in the former Code of Procedure (§ 135), that it must also appear that the defendant, being a foreign corporation, “has property within the State, or the cause of action arose therein.” The question is as to the effect of such service unaccompanied by a warrant of attachment. The question has been discussed, but not as yet authoritatively settled. In Parke v. Gay (28 Misc. Rep. 329) Mr. Justice Beeicman had before him a motion to vacate an attachment which had been issued after the granting of an order for the publication of the summons, and after the commencement of the publication, but before the publication and service had been completed. His conclusion was that the order for servicé for publication, although made before the issue of the attachment, was sufficient to sustain the writ. In that case there was no question as to when defendant’s time to appear and answer expired. In Guffey v. Grand Trunk R. Co. (67 Misc. Rep. 553) Mr. Justice Wheeler set aside the service of a summons and complaint. under an order for substituted service, upon the ground that such service was invalid unless accompanied by proof that the defendant, a non-resident corporation, had property within this State. We think that the present order may be sustained
The order should be affirmed, with ten dollars costs and disbursements.
Ingraham, P. J., Laughlin and Miller, JJ., concurred; Dowling, J., dissented.