Hollender v. Wallace

McLaughlin, J.: Action to establish an alleged lost or destroyed will. The defendant is a resident of the State of Illinois. On July 21, 1914, the plaintiff obtained an order for the service of defendant by publication and he was personally served with a copy of the order and the summons and complaint on August 20, 1914, in the State of Illinois. The order was not published — plaintiff relying upon the aforesaid service to give the court jurisdiction of the defendant and the subject-matter of the action. After the service had been made in the manner indicated, the defendant, appearing specially in the action, made a [218] motion to set aside the order of publication and the alleged service thereunder upon the ground, among others, that he was not served with the notice required by sections 442 and 443 of the Code of Civil Procedure. The motion was denied and defendant appeals. Section 442 of the Code of Civil Procedure prescribes the form of notice to he published with the summons, where service is made by publication. Section 443 provides: “Where 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.’ ” It is not claimed that the notice prescribed by this section, or in fact that any notice, was served upon the defendant, but the respondent contends that such omission was a mere irregularity, in no way affecting the service made, and this was the view entertained by the court at Special Term, as appears from his opinion. An examination of the authorities relied upon (McCully v. Heller, 66 How. Pr. 468; Loring v. Binney, 38 Hun, 152; Close v. Calder Co., 139 App. Div. 175; affd., 203 N. Y. 590; Denman v. McGuire, 101 id. 161) does not, I think, sustain this contention. In each case an attempt was made to comply with the statute by serving a notice. I have been unable to find any authority holding that the service was good, even though no notice whatever were served. The true rule to be applied, where service is attempted to be made in the manner here sought, is stated by Judge Chase in Mishkind-Feinberg Realty Co. v. Sidorsky (189 N. Y. 402). He said: “Service of the summons, that is, notice of the commencement of the action and an opportunity by a defendant to appear and defend his rights and interests, are the important prerequisites to jurisdiction by a court. Our Code of Civil Procedure prescribes how notice must be given, and a substantial compliance with such notice is necessary. Unimportant and unessential variations from the form of notice prescribed not affecting the substantial rights of the defendant are irregularities which may he cured by amendment pursuant [219] to the general authority of the court to amend a process, pleading or other proceeding in furtherance of justice.” Here there was not a substantial compliance with the section of the Code referred to, because no notice whatever was served. The omission to serve the notice cannot be treated as unimportant, nor can it be treated as an unessential variation from the form of notice prescribed by the Code. Unless the provision in section 443 of the Code of Civil Procedure which requires that ‘ ‘ a notice must be served ” is to be treated as a nullity, the service obtained was clearly insufficient to give the court jurisdiction. The defendant has challenged its sufficiency by the proper motion for the purpose. I am of the opinion that the motion to set aside the attempted service should have been granted. This conclusion renders it unnecessary to consider the other objections raised by the appellant. The order, in so far as it denied defendant’s motion to set aside the attempted service, is reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs. Lattghlin and Scott, JJ., concurred; Ingraham, P. J., and Clarke, J., dissented.