Elizabeth Sonnak, Respondent, v. Jennie S. Walker, Appellant

Elizabeth Sonnak, Respondent, v. Jennie S. Walker, Appellant. (Appeal No. 1.) Second Department, March 5, 1920. Process — service of summons by publication — action in which attachment granted—moving affidavits as to residence insufficient. Order for the service of summons by publication in an action in which an attachment had been granted reversed because the moving affidavits failed to show that at the time the order was granted the defendant was still a resident, but indicated that she had changed her residence to another State, and also because her presence in a foreign State was not shown to be more recent than December, 1918, leaving her whereabouts for the last three months unaccounted for. Appeal by the defendant, Jennie S. Walker, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 5th day of June, 1919, denying defendant’s motion to vacate and set aside an order for the service of the summons by publication. The day after» the issue of a warrant of attachment, on March 27, 1919, an order for publication was granted. The plaintiff’s affidavit stated: “ That the defendant formerly resided with her father at 1248 Dean street, Brooklyn, New York. That about a year ago, her father died, and after his death the defendant broke up her home there and shipped her furniture to Wiscasset, Maine, telling her friends that she intended to live at that place. That for several months thereafter and until September 4th, 1918, she stopped with Mrs. Lucy K. Faron at 339 Jefferson avenue, Brooklyn, New York. “ That on the 4th day of September, 1918, she left the home of Lucy K. Faron saying she was going to travel in the West. That in the month of January, 1919, she wrote from Los Angeles, California, to a friend in Brooklyn, New York, stating that she was at 6806 Hollywood Boulevard, Los Angeles, California. “ Deponent further says that from other reliable information she believes the defendant was at 6806 Hollywood Boulevard,' Los Angeles, California, in December, 1918. “ Deponent further states that the defendant is of full age and has been continuously absent from the State of New York for more than six months last past and has not made a designation of a person upon whom to serve a summons in her behalf, as prescribed in section 430 of the Code of Civil Procedure of this State.” David L. Podell [Joseph A. Corr with him on the brief], for the appellant. Alfred J. Gilchrist, for the respondent. [MAJORITY — Per Curiam:] Per Curiam: Plaintiff’s affidavit fails to show that at the time this order was granted defendant was still a resident, but instead her affidavit indicated that defendant had changed her residence from New York to Wiscasset, Me. But apart from that, the defendant’s presence in California was not shown as more recent than in December, 1918, leaving her whereabouts for the last three months unaccounted for. This did not meet the statute. (See Code Civ. Proc. § 438 et seq.) Therefore, the order should be reversed, with ten dollars costs and disbursements, and the motion to vacate granted, with ten dollars costs. Rich, Putnam, Blackmar, Kelly and Jaycox, JJ., concur. Order reversed, with ten dollars costs and disbursements, and motion to vacate granted, with ten dollars costs.