Opinion
May, 1903.
Evarts, Tracy Sherman (George E. Cogswell, of counsel), for appellant.
Howland, Murray Prentice (Herbert S. Barnes, of counsel) for respondent.
The plaintiff's attorney upon the summons and complaint herein and the affidavit of the plaintiff obtained an order from a judge of the City Court directing service of the summons in this action be made by publication, etc., or by personal service of the same and a copy of the complaint and of the order without the city of New York. A motion made at Special Term to vacate said order was denied and from that denial this appeal is taken. Section 3170 of the Code of Civil Procedure contains the provisions relative to granting an order of publication in the City Court and so far as it is material to the question on this appeal, it reads as follows: "An order directing service of the summons without the city of New York or by publication may be granted by the court or a judge thereof but only in case where a warrant of attachment has been issued, * * * the plaintiff when he applies for such an order must show by affidavit to the satisfaction of the court or justice that the case is within this section."
One of the essential requirements to enable the plaintiff to obtain such an order as was made herein is the proof by affidavit that a warrant of attachment has been granted. It is not enough that one has been obtained; such fact must be shown by affidavit to the satisfaction of the court or justice, when the court or judge may grant the order. In this case there was no statement or allegation to that effect in any of the papers filed upon which the order of publication was issued. This defect is a fatal one.
The proceeding to obtain service in the manner sought by the plaintiff herein is purely a statutory one and the statute must be strictly followed. Young v. Fowler, 73 Hun, 179; Whiton v. Morning Journal Assn., 23 Misc. 299; Kendall v. Washburn, 14 How. Pr. 380.
The fact that an attachment had been issued is shown by the affidavit of the plaintiff, read in opposition to the motion, and the respondent claims that the court below did, and this court should, consider the evidence supplied by such affidavit. The error of that position is, that the necessary jurisdictional facts must be before the court at the time the order was granted, and cannot afterwards be supplied. In the case cited by the respondent (Howe Machine Co. v. Pettibone, 12 Hun, 657) the motion was to vacate and set aside the order of publication, and the judgment and the order to show cause was granted upon the judgment-roll, and the judgment-roll containing the requisite allegations, the court held that in determining such jurisdictional facts, it was not limited to the affidavit upon which the order for publication was made.
That case has no application to this. It is also urged by the respondent that the notice of motion herein is defective in not specifying the irregularity complained of. This would be so were the alleged defects mere irregularities, but they are jurisdictional imperfections, and in such cases the notice of motion need not necessarily state them. Emerson v. Auburn O.L.R.R. Co., 13 Hun, 150, 152; Whiton v. Morning Journal Assn., supra.
Order reversed and order of publication vacated, with costs.
TRUAX and GILDERSLEEVE, JJ., concur.
Order reversed and order of publication vacated, with costs.