Sunswick Land Company, Respondent, v. Walter E. Murdock, Appellant

Sunswick Land Company, Respondent, v. Walter E. Murdock, Appellant. Second Department, December 30, 1908. Process — service by publication — sufficiency of moving affidavit. An affidavit stating that non-resident defendants on whom service by publication is desired reside in certain distant States, states facts sufficient to enable the judge to draw the conclusion that they cannot with due diligence be served personally in this State. It seems, that such affidavit might not be sufficient where the defendant resides in an adjoining State, the people of which constantly come into this State for business purposes. An affidavit for an order for service by publication should not state the conclusion that the plaintiff will be unable after due diligence to make personal service within the State, but should only' state facts from which such conclusion may be drawn. Appeal by the defendant, Walter E. Murdock, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the lOtli day of July, 1908, upon the decision of the court rendered after a trial at the Queens County Special Term. The action was against the purchaser of real estate for specific performance of his contract of purchase: The plaintiff’s title came through a partition sale in Queens county. Herbert S. Murphy, for the appellant. Franklin Pierce [Arthur J. Baldwin with him on the brief], for the respondent. [MAJORITY — Gaynor, J.:] Gaynor, J.: The affidavit on which the order of service on the non-resident defendants was made was that one of the said defendants resides in Lehigh, state of Iowa, and the other in Victor, state of Colorado, naming them. These facts were certainly sufficient to enable the Judge to draw the conclusion that they could not be personally served in this state with due diligence. How could they % People as a rule stay where they reside. People living off in Iowa and Colorado do not often come to this state; most of them never do. Courts and Judges may base conclusions on reasonable or natural inferences. But fault is found that the affidavit draws the conclusion, for it concludes as follows: “ that the plaintiff will be unable with due diligence to make personal service of the summons in said action upon the said several defendants above named because of the absence of the said defendants ” (naming them) “ and each of them from the state of New York”, following the words of the Code (§ 439). But how, pray, does this matter ? This part of the affidavit was only verbiage. The Code provision requires that the affidavit state facts from which the conclusion may be drawn, not that it state the conclusion. It was not for the affidavit to state the conclusion at all, but the facts from which the Judge could draw the conclusion; and this it did. The Judge’s conclusion does not rest on the affiant’s volunteered conclusion, but on the facts of foreign residence alleged in the affidavit. It seems that in the case of the states bordering on this state, and whose people in general are constantly coming here, many of them being in business or working here, thus making one community with us, as it were, the mere fact of foreign residence might not suffice to enable the conclusion required by the Code to be drawn, viz., “ that the plaintiff has been or will be unable, with due diligence, to make personal service of the summons ” ; but in respect of distant states and countries it evidently does. Many conclusions in the administration of justice are properly drawn on less probative evidence (McLaughlin v. McCann, 123 App. Div. 67). The judgment should be affirmed. Woodward, Hooker, Rich and Miller, JJ.3 concurred. Judgment affirmed, with costs.