Kennedy v. Lamb

• Decision Date: 13 June 1905
• Citation: 74 N.E. 834,182 N.Y. 228
• Parties: KENNEDY v. LAMB et al.
• Court: New York Court of Appeals Court of Appeals

182 N.Y. 228

74 N.E. 834

KENNEDY

v.LAMB et al.

Court of Appeals of New York.

June 13, 1905.

Appeal from Supreme Court, Appellate Division, Second Department.

Action, by Peter J. Kennedy against Margaret Lamb and others, in partition. From an order (92 N. Y. Supp. 385,102 App. Div. 429) granting a motion to compel David P. Goldstein and others to complete their purchase of certain real property sold in such action, they appealed. Reversed.

Frank Walling and Siegmund Rosenthal, for appellants.

Addison S. Sanborn, for respondent.

VANN, J.

The purchasers at the sale in this action, which was brought to partition lands in the borough of Brooklyn, refused to complete their purchase, upon the ground that the title was defective. By an order, made at Special Term and affirmed by the Appellate Division, they were directed to comply with the terms of sale, and they now appeal to this court for relief from what they consider an unlawful command. They claim that the court which rendered the judgment in partition did not acquire jurisdiction of several persons, each a necessary party defendant, because they were not personally served with process, and the effort to serve them by publication was void, owing to a vital defect in the affidavits upon which the order to publish was made.

From the affidavits presented to the justice who granted the order of publication, one made by the plaintiff and the other by his attorney, it appeared that six of the defendants resided in the state of New Jersey, four at Jersey City and two at Plainfield. The only attempt to show compliance with the command of the statute in reference to ‘due diligence to make personal service of the summons' was an allegation in the affidavit of the attorney that ‘the plaintiff will be unable with due diligence to make personal service of the summons within the state, as appears by the affidavit of Peter J. Kennedy hereto annexed.’ The affidavit thus referred to contains nothing whatever upon the subject of diligence, discloses no effort to serve the summons in this state, and gives no reason for not making the effort, aside from the bare fact of nonresidence. It does not appear that the summons had been issued, or that it was placed in the hands of any one for service, upon the defendants named, and, for aught that appears, they could have been served in this state without difficulty. They were nephews and nieces of the plaintiff, and had visited and corresponded with him ‘for several years past,’ as he stated in his affidavit. He did not state how recently they had visited him, when he last heard from them, nor where he himself resided. Four of them lived just across the state line, and two of them but a short distance therefrom. All may have been engaged in business in the state of New York, and in daily attendance there for that purpose, as is the case with so many residents of the state of New Jersey. The affidavit did not state that they were not in New York, or that they were actually in New Jersey, when the affiant swore to it.

An order may be made for service by publication upon a defendant who is a nonresident of the state, provided ‘the plaintiff has been or will be unable with due diligence to make personal service’ within the state. Code Civ. Proc. §§ 438, 439. The bare fact of nonresidence is not enough to authorize the order, for the plaintiff must also show due diligence to make personal service, or state facts tending to show why personal service cannot be made. The statute now in force differs from the one which formerly governed the subject when some of the cases cited were decided, in that the latter authorized service by publication when the person to be served could not ‘after due diligence be found within the state.’ Code Proc. § 135; Voorheis' Code, 1868. The old statute was satisfied with due diligence to find the defendant, while the present statute requires either due effort to serve, or sufficient reasons for not making the effort.

In the case now before us there was no attempt to make personal service, and no reason was given for not trying to serve personally, except the fact of nonresidence. Even if residence in a distant state or in a foreign country permits the inference that the person to be served cannot be found in this state, residence in an adjoining state, just across the line, with no evidence that the nonresident is not in business in this state, or that he does not sojourn here, and no explanation whatever for not trying to serve him here, is not sufficient. As was said by this court in Carleton v. Carleton, 85 N. Y. 313, 315: ‘It is a well-known fact that many persons who are residents of one state have places of business and transact such business in a state different from that in which their residence is located. They are frequently in the latter state, and pass most of their time there. Such persons could be readily found in the state where they do business if due diligence was used for that purpose, and nonresidence, of itself, does not necessarily show that they cannot be found within the state, or raise a presumption that...