McCracken v. Flangan

• Decision Date: 06 October 1891
• Citation: 28 N.E. 385,127 N.Y. 493
• Parties: McCRACKEN v. FLANGAN et al.
• Court: New York Court of Appeals Court of Appeals

127 N.Y. 493

28 N.E. 385

McCRACKEN

v.FLANGAN et al.

Court of Appeals of New York,

Second Division.

Oct. 6, 1891.

This is an appeal by plaintiff from a judgment of the general term of the supreme court for the second judicial department, 5 (N. Y. Supp. 338), affirming a judgment of that court at special term, rendered and entered upon the decision of the court without a jury. Reversed.

The action was ejectment brought to recover the possession of two lots of land situate at Mt. Vernon, Westchester county, by the plaintiff, McCracken, alleging ownership. The answer alleged ownership in defendants, and possession by them as such owners. Upon the trial the plaintiff relied upon a conveyance of the premises in question from one Henry Kahle, who on the 12th day of December, 1867, was the owner of such premises, to the plaintiff and one Patrick McCracken, by deed executed on the 17th day of May, 1869. The said Patrick by his will devised his interest in the same to the plaintiff. The defendants derived title to the premises through a deed from the sheriff of Westchester county, made to one Lawrence Cartan on the 25th day of January, 1869, and by mesne conveyances from Cartan to one Edward Flanagan, and from the latter to the defendants. The sheriff's conveyance was made in pursuance of a sale of said premises in an action determined by judgment in favor of Lawrence Cartan and others against said Henry Kahle in the supreme court. A warrant of attachment was issued in the action against Kahle on the ground that he was not a resident of the state of New York. A notice of the pendency of the action was duly filed, and an order was procured from the county judge of Westchester county for the service of the summons issued at the commencement of this action by publication. Kahle, the defendant in that action, did not appear therein. The application was made under section 135, subd. 3, Code Proc., then in force.

Eugene S. Ives, for appellant.

James W. Covert, for respondents.

POTTER, J., ( after stating the facts.)

The affidavit upon which the judge granted the order for service of the summons and complaint upon the grantor of plaintiff was as follows: ‘City and county of New York-ss.: Minott M. Silliman, being duly sworn, says that he is one of the attorneys for the plaintiffs in the above-entitled action; that a summons has been issued in this action against the defendant therein; that defendant is a non-resident of this state, nor can be found therein, but has a place of residence at Matewan, in the state of New Jersey; that this action is brought to recover the sum of nine hundred and sixty-four dollars and thirty-two cents, and the ground of the plaintiffs' claim in this action is a promissory note made by said defendant for seven hundred and twenty-seven dollars, and due December 13, 1866, and one dollar and eighty-one cents, for protest of said note, and two dollars and fifty-five cents interest due thereon; and the further sum of two hundred and thirty-one dollars and sixty-six cents, with one dollar and thirty cents interest due thereon, on a book-account for goods sold and delivered by said plaintiff to said defendant, which said several sums still remain due and unpaid. That said defendant has property consisting of real estate situated at Mt. Vernon, in said county of Westchester and state of New York.’ The affidavit is made by one of plaintiffs' attorneys, and, though it embraces several quite diverse subjects, it nevertheless imports unqualified knowledge in respect to all of them.

The sole question sought to be raised upon this appeal by the appellant arises upon section 135 of the Code of Procedure, which is in these words: ‘Where the person on whom the service of the summons is to be made cannot, after due diligence, be found within the state, and that fact appears to the satisfaction of the court or a judge thereof, or of a county judge of the county where the trial is to be had, and it in like manner appears that a cause of action exists against the defendant in respect to whom the service is to be made, or that he is a proper party to an action relating to real property in this state, such court or judge may grant an order that the service be made by the publication of a summons in either of the following cases: * * * Subd. 3. Where he is not a resident of this state, but has property therein, and the court has jurisdiction of the subject of the action,’-which precedes the specifications of the class of cases in which service of the summons other than personal may be made. It would seem that by a just construction of that section certain facts are required to be made to appear to the satisfaction of the court or judge, before granting the order for this exceptional mode of service of process upon the defendant in the action, viz., that such person cannot, after due diligence, be found within this state, and that a cause of action exists against such defendant in certain respects. There is no question that the affidavit in this case makes it appear that a cause of action exists against the defendant, and the nature of it. But does the affidavit make this fact to appear, viz., that the defendant cannot, after due diligence, be found within the state? This language fairly imports two facts, viz., the exercise of due diligence to find the defendant within this state, and the failure to find him through the exercise of such diligence. Assuming that it was competent for the affiant to depose that the defendant could not be found within the state, will such statement in the affidavit suffice for the proof of the exercise of due diligence to find the defendant, or is due diligence necessarily to be imported into the affidavit, or to be inferred from the statement therein that the defendant cannot be found within the state? If that was the case, the legislature would doubtless have been satisfied to have the affidavit state that the defendant cannot be found within the state, and not have superadded thereto the phrase, ‘after due diligence.’ Besides, it is a fundamental rule that, when facts are to be found by a judge or jury, the evidence of the existence of the requisite facts must be presented, and not the conclusion or inference of the affiant or witness that the requisite facts exist. If this were not so, the judicial function of the court or jury would be superseded, and the conclusion of the affiant or witness would be substituted instead of the judgment of the court or jury. It is plain, from a consideration of the law, that...