McCarthy v. McCarthy

By section 435 of the Code of Civil Procedure power is given to a justice of this court to order a substituted service upon a defendant residing within this State, “ upon satisfactory proof by the affidavit” of a person not a party to the action * * * that proper and diligent effort has been made to serve the summons upon the defendant,” and that he avoids service so that *548personal service cannot be made.” First. The affidavit presented called upon tbe justice to determine whether diligence had been used to serve the summons. Second. The efforts were stated and the justice properly determined that they indicated “ that proper and diligent effort had been made ” to serve the summons. Third. That she was within the State. Fourth. And that she avoided service, so that personal service could not be made. The justice was called upon judicially to determine upon “satisfactory proof” and he found all the facts required by the statute to be stated, and upon them concluded that a proper case had been made out for substituted service.

He, therefore, properly exercised the power confered by the 435th section of the Code. In Simpson v. Burch (4 Hun, 316), GilbeRT, J., said : “The evidence presented to him was competent, and tended to prove the facts on which his authority to issue the order depended ; nothing more is required.” (4 Dept.)

The proofs submitted by the defendant upon this motion, and her subsequent efforts to get rid of the order for substituted service, and the affidavits used by the plaintiff, if examined de novo, indicate an effort on the part of the defendant to “ avoid service,” and such conclusion is in harmony with the one reached when the order was granted September 4, 1877, for substituted service. We think the learned justice properly refused to set aside the order for substituted service, and that his order should be affirmed with ten dollars costs and disbursements.

Order affirmed, with ten dollars costs and disbursements.