SEC. 439. Papers upon which order for publication may be made. 440. By whom order may be made; contents of order.

441. When publication must be commenced; when service deemed complete.

442. Papers to be filed; notice to defendant.

443. Id.; when service is made without the State.

444. Proof of service.

445. Defendant when allowed to defend.

§ 435. [Amended, 1880.] Order for service of summons from court of record, when defendant not found, etc.Where a summons is issued in any court of record, an order for the service thereof, upon a defendant residing within the State, may be made by the court, or a judge thereof, or the county judge of the county where the action is triable, upon satisfactory proof, by the affidavit of a person, not a party to the action, or by the return of the sheriff of the county where the defendant resides, that proper and diligent effort has been made to serve the summons upon the defendant, and that the place of his sojourn cannot be ascertained, or if he is within the State, that he avoids service, so that personal service cannot be made. See § 638.

Part of L. 1853, ch. 511 (4 Edm. 598). Simpson v. Burch, 6 T. & C. 560; s. C., 4 Hun, 315; Collins v. Ryan, 32 Barb. 648; Foot v. Harris, 2 Abb. 454; Skinnion v. Kelley, 18 N. Y. 355: Nagle v. Taggart, 4 Abb. N. C. 144, Sp. T.; Easton v. Malavezi, 7 Daly, 147; McCarthy v. McCarthy, 55 How. 418, aff'd, 16 Hun, 546; McCarthy v. McCarthy, 54 How. 97.

§ 436.* How service must be made. The order must direct, that the service of the summons be made, by leaving a copy thereof, and of the order, at the residence of the defendant, with a person of proper age, if upon reasonable application, admittance can be ob tained, and such a person found who will receive it; or, if admittance cannot be so obtained, nor such a person found, by affixing the same to the outer or other door of the defendant's residence, and by depositing another copy thereof, properly inclosed in a post-paid wrapper addressed to him, at his place of residence, in the post. office at the place where he resides.

Part of L. 1853, ch. 511, am'd.

The

§ 437. Papers to be filed; proof of service. order, and the papers upon which it was granted, must be filed, and the service must be made, within ten days after the order is granted; otherwise the order becomes inoperative.(1) On filing an affidavit, showing service according to the order, the summons is deemed served, and the same proceedings may be taken thereupon, as if it had been served by publication, pursuant to an

order for that purpose, made as prescribed in the next section. (2.)

(1) New. (2) From L. 1853, ch. 511.

$438. [Amended 1879 and 1884.] Cases in which service of summons by publication, etc., may be ordered: An order directing the service of a summons upon a defendant, without the State, or by publication, may be niade in either of the following cases:

1. Where the defendant to be served is a foreign corporation; or, being a natural person, is not a resident of the State; or where, after diligent inquiry, the defendant remains unknown to the plaintiff, or the plaintiff is unable to ascertain whether the defendant is or is not a resident of the State. (1)

2. Where the defendant, being a resident of the State, has departed therefrom, with intent to defraud his creditors, or to avoid the service of a summons; or keeps himself concealed therein, with like intent. (2)

3. Where the defendant, being an adult, and a resident of the State, has been continuously without the United States more than six months next before the granting of the order, and has not made a designation of a person, upon whom to serve a summons in his behalf, as prescribed in section four hundred and thirty of this act; or a designation so made no longer remains in force; or service upon the person so designated cannot be made within the State, after diligent effort.

4. Where the complaint demands judgment annulling a marriage, or for a divorce, or a separation. (3)

5. Where the complaint demands judgment, that the defendant be excluded from a vested or contingent interest in, or lien upon, specific real or personal property within the State; or that such an interest or lien in favor of either party be enforced, regulated, defined, or limited; or otherwise affecting the title to such property.

6. Where the defendant is a resident of the State, or a domestic corporation; and an attempt was made to commence the action against the defendant, as required in chapter fourth of this act, before the expiration of the limitation applicable thereto as fixed in that chapter; and the limitation would have expired, within sixty days next preceding the application, if time had not been extended by the attempt to commence the action.

7. Where the action is against the stockholders of a corporation, or joint-stock company, and is authorized by a law of the State, and the defendant is a stockholder thereof.(5)

When a copy of the summons is required by subdivision first or subdivision second of section four hundred and twenty-six of this act, or by section four hundred and twenty-nine of this act, to be delivered to a person other than the defendant, an order, directing the service of a copy of the summons upon such person without the State, or by publication, may be made as prescribed in this section, as if such person was the defendant in the action, and upon a verified complaint and the same proof with respect to such person, as is required in the next succeed

ing section with respect to a defendant. And sections four hundred and forty to four hundred and forty-four, both inclusive,' apply to the proceedings in like manner as if such person was a defondant.

Substitute for Co. Proc., 135; Hallett v. Righters, 13 How. 43; Brisbane . Peabody, 3 id. 109; Kendall v. Washburn, 14 id. 380; Cook v. Farren, 34 Barb. 95; Wortman v. Wortman, 17 Abb. 66; Fiske v. Anderson, 12 id. 8; 33 Barb. 71; Peck v. Cork, 41 id. 549; Handley v. Quick, 47 How. 233; Brooklyn Trust Co. v. Bulmer, 49 N. Y. 84. (1) Lefferts v. Hoffman, 1 Abb. N. 8. 2, n.; Hurlbert v. Hope Mut. Ins. Co., 4 How. 278; Wortman . Wortman, 17 Abb. 66. (2) Roche v. Ward, 7 How. 416; Collins . Ryan, 33 Barb. 647; Towsley v. McDonald, 32 id. 604; Easterbrook ♥. Easterbrook, 64 id. 421; Bixby v. Smith, 5 T. & C. 279; s. c., 49 How. 50; 3 Hun, 60; Von Rhade v. Von Rhade, 2 T. & C. 491. (3) Easterbrook ♥. Easterbrook, 64 Barb. 421. (4) Wheeter v. Scully, 50 N. Y. 667; Allen. Malcolm, 12 Abb. N. S. 335; Steinle. Bell, id. 171; Schwinger . Hickok, 53 N. Y. 280; Sandford . White, 56 id. 359. (5) See L. 1869, ch. 157, 1.

§ 439. [Amended, 1879.] Papers upon which order for publication may be made. The order must be founded upon a verified complaint, showing a sufficient cause of action against the defendant to be served, and proof by affidavit of the additional facts required by the last section; and also, where the application is made upon the ground that the defendant is a foreign corporation, or not a resident of the. State, or in a case specified in subdivision fourth, fifth, or seventh of the last section, that the plaintiff has been or will be unable, with due diligence, to make personal service of the

summons.

See Co. Proc., 135. Kendall v. Washburn, 14 How. 380; Titus . Relyea, 16 id. 371; s. c., 8 Abb. 177; Waffle v, Goble, 53 Barb. 517; Jacquerson v. Van Erben, 2 Abb. 315.

§ 440. [Amended, 1889.] By whom order may be made; contents of order. The order may be made by a judge of the court, or the county judge of the county where the action is triable. It must direct that service of the summons, upon the defendant named or described in the order, be made by publication thereof in two newspapers, designated in the order as most likely to give notice to the defendant, for a specified time, which the judge deems reasonable, not less than once a week for six successive weeks; or, at the option of the plaintiff, by service of the summons, and of a copy of the complaint and order, without the State, upon the defendant personally, and if he is an infant under the age of fourteen years, also upon the person with whom he is sojourning; or, if the defendant is a corporation, upon an officer thereof, specified in section four hundred and thirty-one or four hundred and thirty-two of this act. It must also contain, either a direction that, on or before the day of the first publication, the plaintiff deposit in a specified post-office, one or more sets of copies of the

summons, complaint, and order, each contained in a securely closed post-paid wrapper, directed to the defendant, at a place specified in the order; or a statement that the judge, being satisfied, by the affidavits upon which the order was granted, that the plaintiff cannot, with reasonable diligence, ascertain a place or places, where the defendant would probably receive matter transmitted through the post-office, dispenses with the deposit of any papers therein.

Substitute for part of 135 of Co. Proc. (1) Olcott v. Robinson, 21 N. Y. 150; People v. Gray, 10 Abb. 463; Steinle v. Bell, 12 Abb. N. S. 171. (2) Kerner v. Leonard, 15 Abb. N. S. 96; Brooklyn Trust Co. v. Bulmer, 49 N. Y. 84. (3) Towsley. McDonald, 32 Barb. 609; Warren . Tiffany, 9 Abb. 66; 3. c., 17 How. 106; Hyatt v. Wagenright, 18 How. 248.

§ 441. [Amended, 1877.] When publication must be commenced; when service deemed complete.The first publication in each newspaper designated in the order, or the service upon the defendant without the State, must be made within three months after the order is granted. For the purpose of reckoning the time within which the defendant must appear or answer, service by publication is complete upon the day of the last publication, pursuant to the order; and service made without the State is complete upon the expiration thereafter of a time equal to that prescribed for publication.

Cc. Proc., substitute for part of 135 and 137. Brooklyn Trust Co. v. Balmer, 49 N. Y. 84; Kerner v. Leonard, 15 Abb. N. S. 96; Richardson v. Eates, 23 How. 516; Brod v. Heymann, 3 Abb. N. S. 396.

§ 442. [Amended, 1877.] Papers to be filed; notice to defendant. - Where service is made by publication, the summons, complaint, and order, and the papers upon which the order was made, must be filed with the clerk, on or before the day of the first publication; and a notice, subscribed by the plaintiff's attorney, and directed only to the defendant or defendants to be thus served, substantially in the following form, the blanks being properly filled up, must be subjoined to, and published with the summons: See post, § 1541, 1774.

"To : The foregoing summons is served upon you, by publication, pursuant to an order of (naming the judge and his official title), "dated the 18 , and filed with the com.

day of

plaint, in the office of the clerk of

at

Sabstitute for Co. Proc., part of 135. Kendall v. Washburn, 14 How. 330 Titus v. Relyea, 16 id. 371; Waffle v. Goble, 53 Barb. 517; Jacquer. v. Van Erben, 2 Abb. 315.

S443. [Amended, 1877.] Id.; when service is made without the State. - Whero service is made without the State, the papers specified in the last section must be previously filed; and a notice must be served with the summons, in all respects like the notice required by the last section, except that the words, "without the State of New-York", must be substituted for the words, "by publication".

New.

$444. Proof of service. Proof of the publication of the summons and notice must be made by the affidavit of the printer or publisher, or his foreman or principal clerk. (1) Proof of deposit in the post-office, or of delivery, of a paper required to be deposited or delivered by the provisions of this article, must be made by the affidavit of the person, who deposited or deliv. ered it.(2)

Co. Proc.. 138, subd. 3. (1) Bunce v. Reed, 16 Barb. 347; Brisbane . Peabody, 3 How. 109. (2) Steinle v. Bell, 12 Abb. N. S. 171; Hallett v. Righters, 13 How. 46; Morrell v. Kimball, 4 Abb. 352.

§ 445. [Amended, 1877.] Defendant when allowed to defend. Where the summons is served, pursuant to an order made as prescribed in this article, and the defendant so served does not appear; he or his representative, on application and sufficient cause shown, at any time before final judgment, must be allowed to defend the action; and, except in an action for divorce. or wherein the contrary is expressly prescribed by law, the defendant, or his representative, must, in like manner, upon good cause shown, and upon just terms, be allowed to defend, after final judgment, at any time within one year after personal service of written notice thereof; or, if such a notice has not been served, within seven years after the filing of the judgmentroll. If the defence is successful, and the judgment, or any part thereof, has been collected or otherwise en forced, such restitution may thereupon be compelled, ss the court directs; but the title to property, sold, to a purchaser in good faith, pursuant to a direction contained in the judgment, or by virtue of an execu tion issued upon the same, shall not be affected thereby

Id., part of 135. Brown v. Brown, 58 N. Y. 609; Roche v. Ward, 7 How. 416; Van Wyck v. Hardy, 39 id. 392; Jacquerson v. Van Erben, Abb. 315; Hallett v. Righters. 13 How. 43; Titus v. Relyea, 16 id. 371; Chapman v. Lemon, 11 id. 235; Carswell v. Neville, 12 id. 445; Hartwell . White, 9 Paige, 363.