Easterbrook v. Easterbrook
New York Supreme Court
HIS was an action brought by a wife against her husband, to obtain a separation. In August, 1872, the plaintiff obtained an order for publication of the summons. An affidavit of the plaintiff was produced, with the certificate of the sheriff of Montgomery county. The defendant now moves to set aside the order for publication ; and his attorney appears specially for the purposes of the motion, only.
1Opinion of the CourtHardin, J.
It is provided by section 135 of the Code, that “where the person on whom service of the summons is to be made cannot, after due diligence, be found within the State, and that fact appears by affidavit to the satisfaction of the court, or a judge,” &c., an order for publication of the summons may be made in certain cases provided for by the subsequent provisions of the section. The order in this case must be set aside, be*414cause the papers upon which it is founded do not conform to the requirements of the statute.
There is no diligence shown to have been made to find the defendant, within the…
2Cases cited1 opinion
- Peck v. CookNew York Supreme Court · 1863
3Cited by4 opinions
- Slocum v. McLarenSupreme Court of Minnesota · 1909
- Rudolph v. RudolphSuperior Court of Buffalo · 1890
- Rudolph v. RudolphThe Superior Court of New York City · 1890
- Seiler v. WilsonNew York Supreme Court · 1887