Opinion
February, 1896.
Oliver C. Semple, for motion.
E.A.S. Man, opposed.
In this case the defendant, for the purposes of motion only, appears and moves to vacate an order for the service of the summons by publication, dated and filed on the 26th day of September, 1895, together with any service of such summons made thereunder. The motion is made upon the papers on file, on the ground of want of jurisdiction in the justice making said order: First. Because the justice making such order was then and there without power to make the same for want of a verified complaint showing a sufficient cause of action against the defendant directed to be served. Second. Because this court was then and there without jurisdiction of the cause of action set forth in the complaint, as appears upon the face of such complaint, under section 1780 of the Code of Civil Procedure.
Section 1780 of the Code of Civil Procedure provides that an action against a foreign corporation may be maintained by a resident of the state or by a domestic corporation for any cause of action. Section 439 of the Code of Civil Procedure provides that the order of publication must be founded upon a verified complaint, showing a sufficient cause of action against the defendant to be served, etc. It was held by the General Term of this department in Ladenburg v. Commercial Bank of Newfoundland, 87 Hun, 269, that in an action brought against a foreign corporation commenced by attachment, where the cause of action arose without the state of New York, the Supreme Court has no jurisdiction unless the plaintiffs are residents of the state of New York. It was held in the case of Bryan v. University Publishing Co., 112 N.Y. 382, that to authorize an order under the Code of Civil Procedure, section 438, directing service of a summons by publication on the ground that the defendant is a nonresident, not only is an affidavit of nonresidence necessary, but also a verified complaint showing a sufficient cause of action against the defendant to be served (Code Civ. Pro., § 439), and that the case is one of which the court can take cognizance. And in Paget v. Stevens, 143 N.Y. 172-177, the court say that, under the provisions of the Code of Civil Procedure providing for the service of a summons by publication upon a defendant out of the state (§§ 438-439), which require that the order directing such a service shall be founded upon a verified complaint showing a sufficient cause of action against a defendant to be served, it is not sufficient that the complaint set forth facts sufficient to constitute a cause of action; the cause of action must be one of which the court can take cognizance.
It is apparent from these decisions that where an action is brought against a foreign corporation, all the facts required by section 1780 must be set forth in a verified complaint in order to enable the plaintiff to obtain an order of publication, and to give the court jurisdiction for that purpose. In this case it was necessary, under section 1780, that the plaintiff in his complaint should show that he was a resident of this state. There was no such allegation in the verified complaint which was submitted to the learned justice who granted the order of publication. On the contrary, it appeared from the contract, which was set forth at length in the complaint, that both plaintiff and defendant were nonresidents. The plaintiff relies upon an order made by one of the justices of this court, permitting him to amend his complaint nunc pro tunc; but as the defect in the first instance was jurisdictional, the amendatory order is of no avail. See Ladenburg v. Commercial Bank, etc., 87 Hun, 274, and cases cited. In the Ladenburg case, it had been held at the Special Term that the defect could be cured by an affidavit filed nunc pro tunc; but the General Term, as already stated, did not concur in that view. I am of the opinion, therefore, that this motion must be granted.
Motion granted.