Peck v. Cook
New York Supreme Court
APPEAL from an order made at a special term setting aside an order made by George Hastings, county judge of Livingston county, for the service of the summons in this case upon the defendant Cook by publication.
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APPEAL from an order made at a special term setting aside an order made by George Hastings, county judge of Livingston county, for the service of the summons in this case upon the defendant Cook by publication. The application for the order was made upon the following affidavit of the plaintiff, viz: “ J. Franklin Peck, being duly sworn, says that he is the plaintiff in this action, which is in the nature of a creditor’s suit, and is brought for the purpose of reaching the property of the said defendant Anthony Yorks, which cannot be done by execution, the said action having been commenced by…
1Opinion of the Court
By the Court, James C. Smith, J.
Upon every application for an order that the service of a summons may he made by publication, pursuant to the provisions of section 135 of the code, the applicant must not only show that the case falls within some one of the five subdivisions of that section, hut he must also establish the central jurisdictional fact that the person on whom the service of the summons is to he made cannot, after due diligence, he found within the state. The circumstance that such person is a non-resident is of no importance except as it tends to establish the fact that he is not…
2Cases cited3 opinions
- Fenton v. GarlickNew York Supreme Court · 1811
- Fiske v. AndersonNew York Supreme Court · 1860
- Brisbane v. PeabodyNew York Supreme Court · 1847
3Cited by11 opinions
- Easterbrook v. EasterbrookNew York Supreme Court · 1872
- Soderberg v. SoderbergSupreme Court Of The Territory Of Dakota · 1877
- Reynolds v. ClearyNew York Supreme Court · 1891
- Slocum v. McLarenSupreme Court of Minnesota · 1909
- Donnelly v. WestNew York Supreme Court · 1880
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