Reiter v. Irving

Per Curiam. Order denying motion to vacate judgment unanimously reversed upon the law, with ten dollars costs to appellant, and motion granted, with ten dollars costs. The order denying motion to vacate order for substituted service unanimously reversed upon the law, without costs, and motion granted, without costs. An order for substituted service of the summons in the Municipal Court can be made only where the defendant resides within the city of New York or is a domestic corporation having its place of business therein. (Mun. Ct. Code, § 23; Sever v. Zucca, 106 Misc. 620; Athias v. Hollingsworth, 179 N. Y. Supp. 606.) The order allowing substituted service and the affidavit upon which it was granted both fail to show that the defendant was a resident of the city of New York, but on the contrary show that his residence could not be ascertained. This is wholly insufficient. The provisions of the Civil Practice Act with reference to [14] substituted service (§§ 230, 231) are to be read with section 23 of the Municipal Court Code. (U. S. Cast Iron Pipe & Foundry Co. v. Roberts & Co., 114 Misc. 560, 562.) Present, Cropsey, MacCrate and Lewis, JJ.