Co. 7 Abb. N. S. 70). This was affirmed at general term. (Ed.) Contra, see Seaver v. Robinson, 3 Duer, 622; Merrill v. George, 23 How. 331.

a. Time of service.-Service of summons on a Sunday would be void (Field v. Park, 20 Johns. 140; and see 8 Barb. 387); but it may be at any hour of the day or night. In this respect there is a distinction between services of notices and of process (Priddee v. Cooper, 1 Bing. 66; Upton v. McKenzie, 1 D. & R. 172; Weyburn v. Neale, 2 Burr. 813; see post, note to § 408). Process cannot be served on Saturday on persons who observe that day as a Sabbath (Laws 1839, ch. 367, repealed Laws 1847, ch. 349; Hastings v. Farmer, 4 N. Y. 296). The fact that process was served on Sunday does not render the judgment void (Murks v. Wilson, 11 Abb. 87).

b. Service on election day.-Service of a summons on an elector on an election day, is a void service (Meeks v. Noxon, 1 Abb. 280; 11 How. 189; Hastings v. Farmer, 4 N. Y. 296; Bierce v. Smith, 2 Abb. 411; Laws 1842, ch. 130; Wheeler v. Bartlett, 1 Edw. Ch. R. 323; Re Election Law, 7 Hill, 194). c. Service on day of town meeting.—(1 R. S. 342, § 10).

d. Fraud in service.-The courts will not sanction any attempt by fraud or misrepresentation to bring a party within the jurisdiction (Carpenter v. Spooner, 2 Sand. 717; Goupel v. Simonson, 3 Abb. 474); thus, where by a false statement made for the purpose, a defendant was induced to come to the city of New York, and was there served with process, it was held to be irregular (id.; and see Metcalf v. Clark, 41 Barb. 45).

e. Service on husband and wife.-Where the action is against husband and wife, service on the husband alone will be good service on both, unless relief be asked out of the separate estate of the wife, in which case she must be served (Eckerson v. Vollmer, 11 How. 42; Foote v. Lathrop, 53 Barb. 183).

f. Service on the people.-In a suit against the State, the service of process on the governor, or chief executive magistrate, and on the attorneygeneral of the State, is a regular service (Chisholm's Exors. v. State of Georgia, 3 Peters' Cond. Rep. 51; 2 Dallas' Rep. 419).

g. Defective service is to be cured by motion (Nones v. Hope Mut. Ins. Co. 8 Barb 541).

§ 135. (Am'd 1849, 1851, 858, 1860.) Service by publication. Form of summons.

Where 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 to the satisfaction of the court, or a judge thereof, or of the county judge of the county where the trial is to be had, and it in like manner appears that a cause of action exists against the defendant in respect to whom the service is to be made, or that he is a proper party to an action relating to real property in this State, such court or judge may grant an order that the service be made by the publication of a summons, in either of the following cases :

1. Where the defendant is a foreign corporation, has property within the State, or the cause of action arose therein;

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

3. Where he is not a resident of this State, but has property therein, and the court has jurisdiction of the subject of the action;

4. Where the subject of the action is real or personal property in this State, and the defendant has, or claims, a lien or interest, actual or contingent, therein, or the relief demanded consists wholly or partly in excluding the defendant from any interest or lien therein;

5. Where the action is for divorce, in the cases prescribed by law:

The order must direct the publication to be made in two newspapers to be designated as most likely to give notice to the person to be served, and for such length of time as may be deemed reasonable, not less than once a week for six weeks. In case of publication, the court or judge must also direct a copy of the summons and complaint to be forthwith deposited in the postoffice, directed to the person to be served, at his place of residence, unless it appear that such residence is neither known to the party making the application, nor can with reasonable diligence be ascertained by him. When publication is ordered, personal service of a copy of the summons and complaint, out of the State, is equivalent to publication and deposit in the post-office.

The defendant against whom publication is ordered, or his representatives, on application and sufficient cause shown at any time before judgment, must be allowed to defend the action; and, except in an action for divorce, the defendant against whom publication is ordered, or his representatives, may, in like manner, upon good cause shown, be allowed to defend after judgment, or at any time within one year after notice thereof, and within seven years after its rendition, on such terms as may be just; and if the defense be successful, and the judgment, or any part thereof, have been collected, or otherwise enforced, such restitution may thereupon be compelled as the court directs; but the title to property sold under such judgment to a purchaser in good faith shall not be thereby affected.

And in all cases where publication is made, the complaint must be first filed, and the summons, as published, must state the time and place of such filing.

6. In actions for the foreclosure of mortgages on real estate, already instituted, or hereafter to be instituted, if any party, or

parties, having any interest in or lien upon such mortgaged premises, are unknown to the plaintiff, and the residence of such party or parties cannot, with reasonable diligence, be ascertained by him, and such fact shall be made to appear, by affidavit, to the court, or to a justice thereof, or to the county judge of the county where the trial is to be had, such court, justice, or county judge, may grant an order that the summons be served on such unknown party or parties by publishing the same for six weeks, once in each week successively, in the State paper, and in a newspaper printed in the county where the premises are situated, which publication shall be equivalent to a personal service on such unknown party or parties.

a. Other provisions.-By Laws 1858, p. 974, whenever it satisfactorily appears to any court, or any judge of the supreme court, or any county judge, by the return or affidavit of any sheriff, deputy sheriff or constable, authorized to serve or execute any process or paper for the commencement or in the prosecution of any action or proceeding, that proper and diligent effort has been made to serve such process or paper on any defendant residing in this State, and that such defendant cannot be found, or if found, avoids, or evades, such service, so that the same cannot be made personally, by such proper diligence and effort,—such court or judge may, by order, direct the service of any summons, subpoena, order, notice or other process or paper to be made by leaving a copy thereof at the residence of the person to be served, with some person of proper age, if admittance can be obtained, and such proper person found who will receive the same; and if admittance cannot be obtained, or any such proper person found, who will receive the same, by affixing the same to the outer or other door of said residence, and by putting another copy thereof, properly folded or enveloped, and directed to the person to be served at his place of residence, into the post-office in the town or city where such defendant resides, and paying the postage thereon. On filing with the clerk of the county where such defendant resides, or the county in which the complaint in any such action is by law to be filed, an affidavit showing service according to such order, such summons, subpœna, order, notice, or other process or paper, shall be deemed served, and the same proceedings may be taken thereon as if the same had been served by delivery to such defendant personally, or otherwise, as by law now required; but the court may, upon any application by them deemed reasonable, at any time permit any defendant to appear and defend, or have such other relief in any action or proceeding founded on any such service, as the nature of the case may require.

b. Laws of 1863, ch. 212, amend the foregoing law of 1853, and provide that except in partition cases or actions or proceedings where no personal claim is made against any persons in the classes thereafter described none of the provisions of the Law of 1853 should apply to officers, soldiers or musicians while "actually absent from home" and actually engaged in the military service of the United States, nor to any sailor or marine actually absent "from home" and actually engaged in the naval service of the United States, and except in partition cases and cases where no personal claim is made as aforesaid, no order is to be granted under the Law of 1853 unless it be first shown by affidavit to the satisfaction of the court or judge that the defendant against whom such an order is desired is not an officer, soldier, musician, sailor or marine actually absent and in service as aforesaid, or that the action

A

is to partition real estate, or that no personal claim is made on the defendant against whom the order is sought.

a. The provisions of this statute of 1853 apply only to cases where the defendant cannot be found either in or out of the State, or being found, avoids or evades personal service (Collins v. Campfield, 9 How. 519; Foot v. Harris, 2 Abb. 454); therefore, where upon an affidavit that the defendant was a resident of this State, but that he was then in the State of Ohio, and not expected back that summer, except on a visit, an order was made for substituted service under this statute, the court on motion set aside such order as not warranted by the statute (Collins v. Campfield, supra; see Jones v. Derby, 1 Abb. 458). An order made under this statute should direct the substituted service to be made in manner prescribed; and if it direct any other mode of service, the order will be irregular (Foot v. Harris, supra).

Note to section 135.

6. Statute to be strictly pursued.-The requirements of the section must be strictly pursued and fully complied with in order to confer jurisdiction (Hallett v. Righters, 13 How. 43; Brisbane v. Peabody, 3 id. 109; Kendall v. Washburn, 14 id. 380; Titus v. Reylea, 16 id. 371; Cook v. Farren, 34 Barb. 95; 12 Abb. 359; 11 id. 40; Wortman v. Wortman, 17 Abb. 66). An order for publication, and all proceedings founded thereupon are absolute nullities, unless the case is in fact within this section. It is not sufficient that the affidavit on which the order is made states the case to be within, nor that the judge making the order is satisfied the case is within, this section (Fiske v. Anderson, 33 Barb. 71; 12 Abb. 8; Peck v. Cook, 41 Barb. 549). The affidavit must show the case is within the law (Peck v. Cook, 41 Barb. 549). The necessary facts cannot be shown in any other manner than by affidavit (Waffle v. Goble, 53 Barb. 517). When the judge has decided on sufficiency of the facts shown to confer jurisdiction, his decision cannot be questioned collaterally (Collins v. Ryan, 32 Barb. 647). But where there is a total absence of proof of the facts necessary to confer jurisdiction, the order for publication and all proceedings founded upon it are absolutely void (Towsley v. McDonald, 32 Barb. 604; Wells v. Thornton, 45 Barb. 390). And if the affidavit is insufficient, it will not be aided by the personal service of the summons out of the State (Peck v. Cook, 41 Barb. 549). Nor can jurisdiction be conferred nunc pro tunc by amendment (Wortman v. Wortman, 17 Abb. 67; Hallett v. Righters, 13 How. 43).

c. Subd. 1.—To obtain an order in a case provided for by subd. 1, it must be proved to the officer who is to make the order that the person to be served (not the defendant) cannot, after due diligence, be found in the State (Hurlbut v. Hope Mut. Ins. Co. 4 How. 278; Wortman v. Wortman, 17 Abb. 66; Irving Savings Institution v. Hardman, 17 Abb. 67, note); and the affidavit should mention the name of the State in which the defendants are incorporated (1 Barb. Ch. Pr. 96).

d. Subd. 2.—When the application is under subd. 2, the affidavit besides showing the existence of a cause of action, and that the defendant cannot after due diligence be found within the State, must also show that being a resident of the State, the defendant has departed therefrom with intent to defraud his creditors, or to avoid the service of the summons, or keeps himself concealed therein with a like intent (Tousley v. McDonald, 32 Barb. 604; Collins v. Ryan, 32 Barb. 647; Roche v. Ward, 7 How. 416). To establish an intent to defraud creditors, the affidavit must show defendant to have property, of which he is about to make a fraudulent or illegal disposition, or which he unjustly refuses to apply to the payment of his debts, or has secreted or removed, or is about to secrete or remove, or has fraudulently encumbered (id.) And to authorize an order on the ground of defendant's departure from the State with an intent to avoid service, the affidavit must furnish proof of such intent (id.)

e. Subd. 3.—It is not sufficient to allege that defendant has "property

within the State of New York, as deponent has been informed and believes " (Exertson v. Thomas, 5 How. 46). Property temporarily brought into the State, as a team merely to remove lumber, is not sufficient (Haight v. Husted, 5 Abb. 170).

a. Subd. 6.—In an action of foreclosure it is sufficient to show that the defendant upon whom service is to be made can not after due diligence be found in the State; it need not be shown that he is a non-resident (Barnard v. Heydrick, 2 Abb. N. S. 47). The fact of non-residence is of no importance, except as it tends to establish the fact that the defendant is not within the State (Peck v. Cook, 41 Barb. 549).

b. The affidavit.-An affidavit to obtain an order for service of a summons by publication may be made by the plaintiff (Waffle v. Goble, 53 Barb. 517; 35 How. 356). Its being wrongly entitled will not affect the regularity of the order Barnard v. Heydrick, 2 Abb. N. S. 47). It must show the residence of the defendant, or that it is neither known to the plaintiff, nor can with reasonable diligence be ascertained by him (Hyatt v. Wagenright, 18 How. 248; Cook v. Farren, 34 Barb. 95; 12 Abb. 359; 11 id. 40). An affidavit which stated "that G. D. and J. D. reside in the State of California, but their present place of residence therein deponent is unable to state," is not suffi cient; it does not show that the residence could not be ascertained "with reasonable diligence" (Cook v. Farren, 34 Barb. 95; 12 Abb. 359; 11 id. 40). An affidavit showing that the defendant is a resident of the State, and that deponent is informed he is absent from the State, and that he believes he is absent for the purpose of defrauding his creditors, without showing grounds for that belief, is insufficient, and an order granted on such an affidavit is irregular, and it and all subsequent proceedings will be set aside on motion (Warren v. Tiffany, 9 Abb. 66; 17 How. 106). But an affidavit on information and belief of the non-residence of the defendant was held sufficient (Van Wyck v. Hardy, 11 Abb. 474; 20 How. 222).

c. Form of summons.-Where the service is by publication, the summons need not mention the name of this State in designating the place where it has been or will be filed (Cook v. Kelsey, 19 N. Y. 412; 8 Abb. 177). The publication of a summons against a non-resident is good where the only statement of the place where it has been filed is contained in a note appended to the copy of the summons declaring that it "has been filed in said clerk's office;" the summons itself, immediately preceding, stating the city and county where such clerk's office is situate (id.) And where the summons was dated at "New York," and stated that the complaint was filed in the clerk's office of the city of New York, and required the copy answer to be served at 13 Chambers street, in the city of New York," but the copy summons published had the words "13 Chambers street," only,-held sufficient (Van Wyck v.. Hardy, 11 Abb. 473; 20 How. 222).

d. The order.-The order for publication should recite the summons in the action, or refer to it as being annexed, that it may appear that there was a summons, and for the purpose of identifying it (Rawdon v. Corbin, 3 How. 416; Vernam v. Holbrook, 5 id. 3; Evertson v. Thomas, 5 id. 46). It need not recite the facts which entitle the plaintiff to the order (Barnard v. Heydrick, 2 Abb. N. S. 47). An order which does not direct copies of the summons and complaint to be mailed is void (Towsley v. McDonald, 32 Barb. 609; Warren v. Tiffany, 9 Abb. 66; 17 How. 106), and wherever a service by mail is proper, if the order omit to direct such service, it will be void (id.) An order which directed merely that "a copy of the summons and complaint be deposited in the post-office, addressed to the defendant," held insufficient (Hyatt v. Wegenright, 18 How. 248). It ought to have directed the deposit "forthwith," and that the summons and complaint should be directed to the defendant at his residence, naming it, if known (id.) Properly the order should be filed, before the papers are deposited in the mail, but an omission to file the order may be rectified at any time by filing the order nunc pro tunc (Barnard v. Heydrick, 2 Abb. N. S. 48; Sillick v. Heydrick, id. 57).