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Williamson v. Williamson.

WILLIAMSON v. WILLIAMSON.

SUPREME COURT, FIRST DEPARTMENT, SPECIAL TERM; FEBRUARY, 18S3.

$439.

Complaint

Service by publication.- On what order for must be founded.
sworn to before commissioner of this State appointed for another
State, but not accompanied by certificate of Secretary of this
State, is not a verified complaint on which to found

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Under § 439 of the Code, an order for service by publication must be founded upon a verified complaint showing a sufficient cause of action against the defendant to be so served, etc. And a complaint which has been sworn to before a commissioner of this State appointed for another State, but which is not accompanied by a certificate of the Secretary of this State, as required by Laws of 1850, Chap. 270, § 4, does not furnish evidence of a verified complaint showing a sufficient cause of action against the defendant, and no jurisdiction is acquired to grant an order for such service, because of the want of a verified complaint.

Motion by defendant to vacate and set aside an order for service by publication, and the service of the summons effected under such order.

The facts are sufficiently stated in the opinion.

C. H. Smith, for motion.

A. Furber, opposed.

LAWRENCE, J.-This is an action to obtain a judg. ment for an absolute divorce, on the ground of the adultery of the defendant. The plaintiff resides in the city of New York, and alleges, in his affidavit, that the defendant "is at present living with her infant child in the said city of Baltimore, and State of Maryland; that for the reason that defendant has not been within the

Williamson v. Williamson.

State of New York for a period long prior to the commencement of this action, deponent has been unable to cause personal service of the summons herein to be made on defendant," etc. Upon the complaint and affidavit of the plaintiff, an order was made on the 5th day of September, 1882, for the service of the summons upon the defendant, by publication, and the defendant having made default, the cause was referred to a referee, who reported in favor of the plaintiff, but said report has not yet been confirmed. The defendant now moves to vacate and set aside the service of the summons and order of publication, for the reason that the complaint presented to the justice granting the order of publication was not a verified complaint, no certificate of the Secretary of State of the State of New York, certifying to the genuineness and official signature of the commissioner of the State of New York, residing in Philadelphia, where the complaint purports to have been verified, being attached to the alleged verification of the complaint; also on the ground that the affidavit and order for publication failed to specify defendant's precise address in Baltimore, to which the summons should have been mailed. There is also in the notice of motion a general prayer that, in case the application be denied on the above grounds, the default of the defendant be opened, and that she be allowed to come in and defend the action.

In this case, the order for the publication of the summons was founded upon a complaint purporting to have been verified before Lewin W. Barringer, a commissioner of the State of New York, resident in Philadelphia, Pennsylvania. By § 439 of the Code of Civil Procedure, the order for the publication of the summons must be founded upon a verified complaint, showing a sufficient cause of action against the defendant, to be served, and proof by affidavit of the additional facts required by § 438. It is claimed that, in this case, no verified com

Williamson v. Williamson.

plaint was presented to the learned justice who granted the order of publication, for the reason that there was not attached to the certificate of the commissioner in Philadelphia, a certificate of the Secretary of State certifying that such commissioner was duly authorized to administer such oath or affirmation, etc. I am inclined to the opinion that this objection is well taken, for the reason that the statutes provide, that when any oath or affirmation shall be taken before any commissioner appointed in another State, for this State, before the same shall be entitled to be used or read in evidence, there shall be subjoined or affixed to the certificate signed and sealed by such commissioner, a certificate under the hand and official seal of the Secretary of State of this State, certifying that such commissioner was duly authorized to administer such oath or affirmation at the time his certificate bears date, and that the secretary is acquainted with the handwriting of such commissioner, or has compared the signature to such certificate with the signature of such commissioner, deposited in his office, and that he believes the signature and the impression of the seal of said certificate to be genuine. (See 3 R. S. [7th ed.] 2231, § 2; [Laws 1875, Chap. 136,* § 2]; Id. 2226, § 4; [Laws 1850, Chap. 270,

4.]). Inasmuch as the statute requires that before any deed or other instrument, oath or affidavit, patent or record, shall be read in evidence, the certificate of the Secretary of State required by the statute shall be attached to the certificate of the commissioner residing in the sister State, it seems to me conclusively to follow, that there was no evidence before the learned justice who granted the order of publication, in this case, that there was a verified complaint showing a sufficient or any

* The provisions of Chap. 136, Laws 1875, seem to be confined to commissioners of the State appointed in foreign States and countries.

Plimpton v. Bigelow.

cause of action against the defendant. And yet, as we have already seen, section 439 of the Code requires that the order must be founded upon a verified complaint, showing such sufficient cause of action. If the view which I take is correct, the learned justice who made the order for the publication of the summons never acquired any jurisdiction to make the order, the essential prerequisite to such jurisdiction, to wit, a verified complaint, being wanting in the case presented to him.

PLIMPTON AND ANO., APPELLANTS, . BIGELOW, RESPONDENT.*

SUPREME COURT, FIRST DEPARTMENT; GENERAL TERM, JANUARY, 1883.

§§ 413, 611, 647, 649, 3343.

Levy under warrant of attachment.-When stock in a foreign corporation, located in this State, belonging to a defendant, may be levied upon.-Application of 647 not restricted to corporations organized under the laws of this State.-How Code discriminates between domestic and foreign corporations. - The objection that an action is barred by the statute of limitations can be taken by answer

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A foreign corporation, organized under the laws of another State, one of the objects of which is to transact business in the city of New York, and in which city its chief place of business and manufactory are situated, and wherein it carries on its general business, and where two out of its three directors reside, is located within the county of New York; and the shares of a defendant in such corporation may be levied upon under a warrant of attachment, although neither the defendant nor the certificates of his stock are within the State. [25] (Davis, P. J.,

*An appeal by the respondent to the court of appeals is pending.

Plimpton . Bigelow.

regarded the right to attach such stock as not free from doubt, but deemed it proper to solve the doubt in favor of the plaintiffs; and concurred upon the ground that, in such a case, the corporation may be treated for all practical purposes as though it were a domestic corporation, and the stock thereof might properly be regarded as in this State, so as to be attachable by a creditor of the owner.) []

The application of section 647 is not limited to corporations formed under the laws of this State, and the only requirements in order to make an effectual levy upon stock in any corporation, under a warrant of attach ment, are, that, through business operations, the corporate property should be within the county of the sheriff who executes the warrant, and that the levy be made according to subdivision 3 of section 649. [°, °] When the Code designs to discriminate between domestic and foreign corporations it designates the particular corporation as either "domestic" or "foreign;" and when there is no such designation, and the language of the provision is appropriate, it will be presumed that it was intended to include all corporations. [""]

The objection that it appears that the action, wherein a warrant of attachment has been granted, was not commenced within the time limited by law, will not justify an order vacating a levy made according to such warrant. Under section 413, which is clearly imperative, such objection can be taken by answer only. ["]

Where the law upon a given subject has been plainly declared by the legislature, the duty of the courts is to follow and enforce it, although it may not be in strict accord with the views expressed upon the same subject by the courts of another State. ["]

Non-residents may institute suits in the courts of this State, and avail themselves of all the remedies provided by the Code. [] Hibernia Nat. Bank v. Lacombe (84 N. Y. 367) followed.

2 McC. Civ. Pro. R. 131, reversed.

Moore v. Gennett (2 Tenn. Ch. 375), Steel v. Smith (7 Watts & Serg. 447) and Danforth v. Penny (7 Metcalf, 564), distinguished.

(Decided March 20, 1883.)

Appeal by plaintiffs from an order of the special term vacating a levy under a warrant of attachment. (Reported below, 2 McC. Civ. Pro. R. 131, and here reversed.)

In addition to the facts given in the report below and contained in the following opinion, it may be stated that the defendant appeared specially for the purposes of the motion; and that, on this appeal, it was claimed that

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