Carleton v. . Carleton
New York Court of Appeals
Appeal from order of the General Term of the Supreme Court, in the second judicial department, made December 14, 1880, which affirmed an order of Special Term denying a motion to set aside the order for the publication of the summons and all subsequent proceedings in this action.
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Appeal from order of the General Term of the Supreme Court, in the second judicial department, made December 14, 1880, which affirmed an order of Special Term denying a motion to set aside the order for the publication of the summons and all subsequent proceedings in this action. (Reported below, 23 Hun, 251.) The motion was made under the Code of Procedure (§ 135); it was based on the ground that the affidavit upon which the order was granted did not state that defendant could not, after due diligence, be found in the State. The only statement in the affidavit on the subject was as follows:…
1Opinion of the CourtMiller, J.
The authority of the court to grant an order of publication for the service of the summons on the defendant was by virtue of section 135 of the Code of Procedure, which declares that “when the person on whom the service of the summons is to be made cannot, after due diligence, be found within the State, and that fact appears by affidavit tó the satisfaction of the court or judge thereof,” etc. The affidavit upon which the order was granted stated that “ the defendant has not resided within the State of New York since March, 1877, and deponent is informed and believes that defendant is now a…
2Cases cited2 opinions
- Belmont v. . CornenNew York Court of Appeals · 1880
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- Nicoll Et Ux. v. Midland Savings Loan Co.Supreme Court of Oklahoma · 1908
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