McCully v. Heller

Cullen, J. I think there was a valid service of the summons on the infant defendants, and therefore it is unnecessary to pass upon the effect of their appearance by guardian. The Code in 1819 was amended so that instead of requiring that the plaintiff “ must present to the judge a verified complaint,” it now provides that the order of publication “ must be founded upon a verified complaint.” To give any effect to this amendment it must be that the actual presentation of the particular verified complaint is unnecessary. In this case there was a verified complaint on file in the county clerk’s office. The affidavit presented for the order of publication set forth such fact and annexed a copy thereof. I think an order made on such affidavit and copy is certainly “ founded ” on the verified complaint. The mistake in the first name of one of the defendants, found in the order of publication, that is, “ Albert ” instead of Alfred,” I think is not material. The affidavit and the caption of the order contain the correct name; so do the summons and notice served on the defendant. I dp not think clerical error sufficient to vitiate the service. The same is [471] true of the omission of the words “ without the state ” in the notice attached to the summons. There remains to be considered the objection that a copy of the summons and complaint was not sent to the defendants by mail in addition to the personal service made upon them. Were it not for the opinion delivered in Ritten agt. Griffith (16 Hun, 455), I should think it clear that the mailing was unnecessary. But the remarks on this point found in the opinion are obiter, and therefore not authoritative. The section of the Code provides for publication of the summons, or in lien thereof personal service of the summons, complaint and order on the defendant out of the state. The order must further direct that on or before the day of the first publication a copy of the summons, complaint and order must be sent to defendant by mail. There is no provision that such copies shall be sent before personal service, and in the case of personal service it is not possible to mail the copies before the first publication, because there is no publication. It is true that is reading the statute closely according to. its mere words, and I admit should not prevail were there anything in the spirit or object of the section of the Code requiring a contrary construction to be given to it. But I think there is not. The object of sending the copies by mail is that such copies may reach the defendant. But why serve a copy in that manner, when it has already been served or is to bff"Served upon the defendant personally. What is to be attained by such double service ? Secondly, there is this distinction between service by publication and personal service out of the state that make the provision as to sending copies by mail applicable in the first case, though unnecessary in the second. In the case of publication, only the summons and notice is published. The defendant who reads the publication is apprized that an action has been instituted against him and of the parties to that action, but not as to the particular claim. Therefore, the complaint is to be mailed to him to give such information. But in the case of personal service out [472] of the state, the copy, complaint and order must be served. Personal service out of the state is more than publication, because- if only what is published, i. e., the summons .and notice, was served personally, the service would be a nulli y. I think neither the spirit of the Code nor its language requires transmission by mail in this case. Motion' denied.