Summary
In Chesley v. Morton (9 App. Div. 461) the order was upheld on the ground that the action partook of the nature of one in rem.
Summary of this case from Murphy v. Franklin Savings BankOpinion
October Term, 1896.
John W. Fiske, for the appellant.
John N. Blair, for the respondent.
Section 438 of the Code of Civil Procedure authorizes the granting of an order of publication, among other cases: "1. Where the defendant to be served, * * * being a natural person, is not a resident of the State. * * * 5. Where the complaint demands judgment that the defendant be excluded from a vested or contingent interest in, or lien upon, specific real or personal property within the State; or that such an interest or lien in favor of either party be enforced, regulated, defined or limited, or otherwise affecting the title to such property." Section 439 limits section 438 by providing that: "The order must be founded upon a verified complaint, showing a sufficient cause of action against the defendant to be served." This latter section, it has been held, requires not only that the facts alleged shall show a cause of action, but also that such cause of action shall be one of which the court where suit is brought may take cognizance. ( Bryan v. University Publishing Company, 112 N.Y. 382; Paget v. Stevens, 143 id. 172.) The court may lack jurisdiction either, as in the Paget case, through statutory limitations placed upon its power, or, as in the Bryan case, by reason of the absence from this State of the person sued or the subject-matter of the action.
Where suit is brought against a non-resident by substituted service, it must partake of the nature of an action in rem, or jurisdiction will not be acquired to render a valid judgment. ( Pennoyer v. Neff, 95 U.S. 714.) In that case Mr. Justice FIELD observed: "It is true that, in a strict sense, a proceeding in rem is one taken directly against property, and has for its object the disposition of the property, without reference to the title of individual claimants; but in a larger and more general sense the terms are applied to actions between parties, where the direct object is to reach and dispose of property owned by them, or of some interest therein. Such are cases commenced by attachment against the property of debtors, or instituted to partition real estate, foreclose a mortgage, or enforce a lien." It will be seen that the learned justice mentions only attachment suits and such suits as would come within the purview of subdivision 5 of section 438 of our Code. We think that the plaintiff in the present action was entitled to an order of publication under this 5th subdivision of section 438.
The complaint, when scrutinized, will be seen to have two aspects. It seeks to obtain a judgment against the defendant for the amount claimed to be due by him to the firm of Morton Chesley. In this aspect it is purely personal in its nature. But the demand for a receiver of the partnership effects, with power to sell, shows that more is sought than a merely personal judgment. There can be no doubt that a member of a dissolved partnership has a lien upon its assets. He is not compelled to rely upon the solvency of his co-partner, but is entitled to the specific application of the joint assets to the payment of the sum due him upon the dissolution. (Lindley on Partnership [6th Eng. ed.], 358, 542; Story on Partnership, §§ 97, 347; Taylor v. Neate, 39 Ch. Div. 538.) The demand of the receivership and injunction is here made in order to effectuate this lien, and the relief prayed for is justified by the allegations of the complaint.
Regarding the plaintiff's suit in this aspect, that is, as one brought to enforce a lien upon the partnership assets in this State, it comes precisely within the provisions of subdivision 5 of section 438 of the Code, and there can be no doubt that it is an action of the class which may be begun through service by publication. Specific property within the limits and jurisdiction of this State is sought to be subjected to a lien in favor of the plaintiff — one of the actions particularly mentioned in Pennoyer v. Neff ( supra).
But one further question remains to be considered. The plaintiff demands a greater measure of relief than could be given him in an action begun without personal service of the summons. Is it essential to the granting of the order that the action, in all its aspects, be maintained here? We think not. Section 439 of the Code requires the complaint to show "a sufficient cause of action against the defendant to be served." This the present complaint does. It demands a measure of relief which the court is competent to grant, together with more which it is not. It frequently happens, however, especially in equity suits, that more is asked than the facts proved permit the court to grant. This, however, is no obstacle to the rendering of the decree to which the plaintiff is entitled. The plaintiff, if he proves his case, is entitled, secundum allegata et probata, to the application of the New York assets to the payment of his claim, and this right is "a sufficient cause of action against the defendant" within the meaning of section 439. Porter Land Water Company v. Baskin (43 Fed. Rep. 323), decided under the California Civil Code, is an authority on this point. The defendant denies that there are New York assets, but this is not the time to try that issue. It is the complaint (§ 439) which must determine whether a sufficient cause of action exists. If the plaintiff has stated in his complaint what he will be unable to prove at the trial, he will pay the usual penalty.
The order appealed from should be reversed, with ten dollars costs and disbursements, and the order of publication reinstated, with ten dollars costs.
RUMSEY, PATTERSON and INGRAHAM, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and order of publication reinstated, with ten dollars costs.