Buford v. New York Iron Mine

Freedman, J. As both parties have conceded that an adjournment of the motion was had, and that the motion was argued below on the merits, the preliminary objection raised below should not be considered on the present appeal. The merits of the motion depend upon the construction of section 440 of the Code of Civil Procedure. The point that the order which was vacated contained no direction whatever as to a publication of the summons, but only an authorization for personal service without the state, was passed upon in Ritten v. Griffith, 16 Hun, 454, and decided adversely to the appellant. The case referred to was distinguished in Weil v. Martin, 24 Hun, 645, and in O'Neil v Bender, 30 Hun, 204, but it has never been overruled. . If the point had never been squarely passed upon, I perhaps could persuade myself to reach a different conclusion. But it has been expressly decided by a general term of the supreme court, and no sufficient reason has been shown why this court should not follow the decision then and there made. The question is a close one, and it can be set at rest only by the court of appeals, and it should be submitted to that tribunal for final determination. Abrahams v. Mitchell, 8 Abb. Pr. 123, arose under section 1357 of the former Code, the language of which differed from the language of section 440 of the Code of Civil Procedure. The order appealed from should be affirmed, with $10 costs and disbursements. Sedgwick, C. J.,and O’Gorman, J., concur. -F