Julius E. Ludden, Respondent, v. Frederick L. Degener, Appellant

Julius E. Ludden, Respondent, v. Frederick L. Degener, Appellant. Service by publication — a copy of the order of publication must be served, without the State. The requirement of section 440 of the Code of Civil Procedure that, where personal service of the summons in an action is made upon a defendant without the State, a copy of the order for the publication of the summons must he served at the same time, cannot he disregarded; a compliance with that requirement is necessary to give the court jurisdiction. Section 443 of the Code of Civil Procedure has no reference to the service of a copy of the order, and does not in any manner dispense with the requirement of section-440. Appeal by the defendant, Frederick L. Degener, from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the 20th day of Movember, 1896, denying his motion to vacate an order for the publication of the summons in the action, and to .set aside a service of the summons and complaint made without the State of Mew York. . Penjmrmi Tusha, for the appellant. Hector M. Hitchvngs, for the respondent. [MAJORITY — Williams, J.:] Williams, J.: We think there was a sufficient affidavit to authorize the granting of the order for the' publication of the summons. The service of the summons and complaint, however, was not properly -made, because a copy of the order for publication was not served therewith, as required by the order made under section 44Ó of the Code of Civil Procedure. The language of this section of the Code is very clear, and the requirement that a copy of the order be Served, when personal service is made without the State, cannot be disregarded, and the service still be deemed sufficient to give jurisdiction of the defendant. Section 443 has no reference to the service of a copy of the order and in no' way dispenses with the requirement of section 440. Section 443 relates merely to the form of the notice to be served with the summons in case personal service is made without the State instead of by publication. It has been held in this department that the order under section 440 is invalid when it omits the provision requiring a copy of the order to be served with the summons and complaint when service is made without the State.: (McCool v. Boller, 14 Hun, 73 ; Johenning v. Johenning, 1 Civ. Proc. Rep. 145.) Certainly, if such omission renders the order invalid, the failure to" comply with such requirement, when contained in the order, would render the service insufficient. The order, so far as it denied the motion to vacate the order for publication, should be affirmed, and SO' far as it denied the motion to set aside the service of the summons and complaint should be reversed, and the motion to set aside granted, without costs of this appeal or in the court below. Van Brunt, . P. J., Barrett, Rumsey and Patterson, JJ., •concurred. Order, so far as it denied motion to vacate order for publication, ¡affirmed, and ¡so far as it denied motion to set aside service of summons. and complaint reversed, and motion to set aside granted, without costs of this appeal or in the court below.