Summary
In Korn v. Lipman, 201 N.Y. 404, 406, the court said: "The general rule in regard to the service of process established by centuries of precedent is that process must be served personally within the jurisdiction of the court upon the person to be affected thereby.
Summary of this case from Sexton v. BernheimerOpinion
Argued March 13, 1911
Decided April 4, 1911
Gustav Lange, Jr., for appellants. Lewis C. Grover and Theodore Burgmyer for respondents.
The due process of law to which a person is entitled by constitutional provision before being deprived of property requires that notice shall be given to such person by lawful service of process before any judgment shall be taken against him.
The general rule in regard to the service of process established by centuries of precedent is that process must be served personally within the jurisdiction of the court upon the person to be affected thereby. Substituted service when provided by statute is in derogation of such general rule, and, consequently, the directions thereof must be strictly construed and fully carried out to confer any jurisdiction upon the court.
The Code of Civil Procedure provides substitutes for personal service in special cases. (Sections 435 to 445.) An order of the court, or of a judge thereof, as provided by said sections, is necessary. Section 440 requires that an order of publication shall contain a provision "That, on or before the day of the first publication, the plaintiff deposit in a specified postoffice, one or more sets of copies of the summons, complaint, and order." The language of the section quoted is significant of the legislative intent that care and caution must be exercised in the steps that are to result in obtaining jurisdiction over the person upon whom the substituted service is authorized.
In this case the order provided: "That on or before the day of the first publication, as aforesaid, the plaintiffs deposit in the general postoffice in the county of New York, city and state of New York." The general postoffice is one established by the postmaster-general in pursuance of section 3829 of the Revised Statutes of the United States as distinguished from a branch office established in pursuance of section 3871, and a receiving box established in pursuance of section 3868 of said Revised Statutes. There is no other statutory provision except as hereinafter stated directing the particular manner or place where a summons or other process served pursuant to an order of publication shall or may be mailed; or defining with greater particularity than as stated in the section of the Code quoted the meaning of "postoffice" or "specified postoffice."
Sections 796 to 802, inclusive, of the Code of Civil Procedure do not apply to the service of a summons or other process (section 802) except as stated in section 802 as the same was amended by chapter 65 of the Laws of 1909. Said section 802, as so amended, provides as follows: "This article except the last section does not apply to the service of a summons, or other process; or of a paper to bring a party into contempt; or to a case where the mode of service is specially prescribed by law." The amendment of 1909 consisted of adding the words therein "except the last section." The last section referred to is apparently section 801, which provides: "In the city of New York, where a paper is served, or a return is made, through the postoffice, the deposit of the package in a branch post-office has the same effect, as a deposit in the general or principal postoffice of that city." Said section 801 recognizes the distinction between "a branch postoffice" and "the general or principal postoffice," and it does not include a "receiving box."
By specifically providing that the deposit of a package in a branch postoffice has the same effect as a deposit in the general or principal postoffice of the city, it practically and inferentially states that a deposit in a receiving box has not the same effect as though deposited in the general or principal postoffice of the city. The summons and other papers herein were not mailed in either a "branch postoffice" or "the general or principal postoffice." We are of the opinion that the form of the order in this case is within the statutory direction and that it did not permit of serving the summons, complaint and order by mailing in the chute attached to the receiving box as stated. We also concur in the opinions delivered in the Appellate Division in Gay v. Ulrichs ( supra), on the authority of which the Special Term and Appellate Division decided against the contention of the appellants, so far as the same hold that the statute must be strictly followed and that section 797 of the Code of Civil Procedure is not applicable to the service of a summons or other process.
The order should be affirmed, with costs, and the question certified answered in the negative.
CULLEN, Ch. J., and WILLARD BARTLETT, J., concur; WERNER and HISCOCK, JJ., concur in the result on the ground that the order of publication specifically required deposit in the "general postoffice;" VANN, J., dissents; HAIGHT, J., absent.
Order affirmed.