The Brooklyn Trust Company, Appellant, v. Sarah Ann Bulmer et al., Respondents

The Brooklyn Trust Company, Appellant, v. Sarah Ann Bulmer et al., Respondents. (Submitted March 27, 1872; decided April 2, 1872.) Personal service of a summons and complaint can be made out of the State only when publication is ordered. (Code, § 185.) When so made it is equivalent to publication and deposit in the post-office. Such service is not complete until the time prescribed for the publication has expired (g 135); and defendant has twenty days thereafter to answer. A judgment, therefore, entered for want of an answer prior to the expiration of the latter period, is irregular. Appeal from order of General Term of the Supreme Court in the second judicial department, reversing order of Special Term directing the purchase at sale of mortgaged premises to complete the sale. The action was brought to foreclose a mortgage of lands in Brooklyn, H. T. Defendant, Sarah Ann Bulmer, is a nonresident, residing in Hew Jersey. October 2, 1871, an order was made, directing service of the summons on said defendant by publication six weeks, and mailing copy summons and complaint. October 4, 1871, summons and complaint were served personally on said defendant in Hew Jersey. October 26, 1871, judgment, on failure to answer, was entered. Respondent, the purchaser at the sale, refused to. complete the purchase, on the ground that the judgment was irregular; the service on defendant, Sarah Ann Bulmer, not being com píete till the expiration of the six weeks mentioned in order of publication. Edgar M. Cullen for the appellant. Personal service out of the State where publication is ordered is a completed service. (Dykers v. Woodward, 1 How., 315; Transcript, March 3, 1865.) George S. Fox for the respondents. Where publication of summons has been ordered, and service of a copy of the summons and complaint has been personally made out of the State, defendant has twenty days to answer after the expiration of the time prescribed in the order for the publication. (Tomlinson v. Van Vechten, 6 How., 199; Abrahams v. Mitchell, 8 Abb., 123.) [MAJORITY — Rapallo, J.] Rapallo, J. Personal service of the summons and com plaint can be made out of the State only when publication is ordered. (Code, § 135.) When so made, it is equivalent to publication and deposit in the post-office. (Id.) Section 137 declares that, in the cases mentioned in section 135, the service of the summons shall be deemed complete at the expira- . ,tion of the time prescribed by the order of publication. It is held, and we think correctly,, in .Tomlinson v. Van Vechten, (6 How., 199), and in Abrahams v. Mitchell (8 Abb. Pr., 123), that where personal service is thus -made opt of, the State, .such service is not complete until the time prescribed. for- the publication has expired. Section 137 requires the lapse of this time to render the.service complete.in all the cases mentioned in section 135. It- makes, no.exception where ..personal service is, pursuant to the same section, substituted for actual publication. The order should.be affirmed with, costs. All concur. Order affirmed.