Carleton v. Carleton , 30 N.Y. Sup. Ct. 251 ( 1880 )

Gilbert, J.:

It was satisfactorily shown on the hearing of this motion that the defendant, as early as March, 1877, had abandoned his wife and •child, and had gone out of the State. This suit was commenced in July, 1877. The adultery of the defendant was legally proved. The decree was regularly obtained, and the plaintiff has remarried •on the faith of its validity. Nevertheless, if it had been shown that any fraud had been perpetrated in obtaining the decree, or that the testimony on which it was granted was false, we should unhesitatingly set it aside. The evidence presented by the defendant on those points is not satisfactory, and it has been contradicted in all material respects by evidence on behalf of the plaintiff. It would not, therefore, be just to the plaintiff, or consonant with public policy, to vacate the decree, on the ground that it was «obtained by fraud. There is no substantial defect in the proof of "the publication of the summons. The summons is annexed to the affidavit of the printer. Calling the paper so annexed a “ notice ” •does not make it one.

The only remaining question relates to the sufficiency of the -affidavit on which the order of publication was made. The statute (Code of Pro., § 135) which governed the case required proof by affidavit, to the satisfaction of the judge who granted the order, that the defendant could not after due diligence be found within the ■State. It was the duty of the judge who made the order to decide upon the sufficiency of the evidence presented to him. If the evidence had a legal tendency to prove the fact requisite to confer jurisdiction upon him to make the order, then, the order is valid, although the proof on which it was made is slight and inconclusive, (Staples v. Fairchild, 3 Comst., 46.) The affidavit on which the order was made states the fact positively “ that the defendant has not resided within the State of New York since March, 1877.” That, we think, is some evidence that the defendant could not after due diligence be found with the State. I perceive nothing in the statute which required proof of an actual search for the defendant, for the fact that a man cannot 'be found in a given place can be proved without an actual search for him there. Proof that the defendant was actually out of the State would be the most convincing'evidence that he could not, with any degree of diligence, be found within it.

It now appears that the defendant was out of the State when the order of publication was made. How futile, then, would have been a search within the State!

The fact may also be shown by evidence of a less conclusive nature. It is the exclusive province of the judge who grants the order to determine whether the affidavit presented is sufficient or not. In some cases, the fact of non-residence, in addition to the fact that the defendant cannot be found, must be shown. (Code, § 135, subd. 3.) In such cases an affidavit of non-residence merely, might with some reason be held insufficient, not because non-residence did not tend to prove that the defendant could not with due diligence be found within the State, but because formal and distinct proof of both facts was requisite to a technical compliance with the statute. This last consideration may account for some of the decisions cited by the learned counsel for the defendant.

Without pursuing the subject further, and omitting a review of the conflicting decisions upon this subject, we are of opinion that the affidavit on which the order of publication was made, though extremely weak and inconclusive, was still sufficient to confer jurisdiction to make the order, and that the order appealed from should be affirmed, with $10 costs, and disbursements.

Dykman, J., concurred; Barnakd, P. J., not sitting.

Order affirmed, with $10 costs, and disbursements.