#### Rose McLaughlin, Respondent, *v.*Henry McCann and Others, Defendants. Daniel F. S. Connell, Appellant.

Second Department;

December 23, 1907.

Process — service by publication -r- affidavits insufficient — partition — title unmarketable.

The moving affidavits on a motion to obtain an' order for service by publication must state *facts*from which the court may determine that the defendant is not ' a resident, or that his whereabouts, after diligent inquiry, remain unknown, and that the plaintiff has not been or will be unable to make personal "service. Allegations in the exact words of the statute are mere conclusions of fact and *68do not authorize the granting of the order. Facts, not conclusions of fact-must be alleged.

Affidavit as to the non-residence of defendants and the inability to make personal service within the State examined, and *Tield,*to be insufficient to give jurisdiction to grant an order for service by publication.

But an allegation that the last known residence of a defendant was somewhere in the State of Washington and that she had not been heard from for upwards of ten years and that; the affiant cannot, after- diligent inquiry, ascertain he residence, is sufficient to warrant an order for service by publication, as the former residence is presumed to continue and is so distant from this State that - there is no probability of effecting personal service here as might be likely were the residence in a near-by State.

When service of summons by publication in an action for partition has been granted on defective affidavits, the purchaser will not be required to take title.

Appeal by Daniel F. S. Connell, the purchaser at a partition sale, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 24th day of September, 1907, denying the appellant’s motion to sustain his objections to the title and to be relieved from completing his purchase.

*Edward T. Horwill [Albert G. McDonald*with him on the brief], for the appellant.

*Henry Melville,*for the respondent.

Gaynor, J.:

The affidavit of the plaintifE on which the order for service by publication was ■ obtained, after stating that none of the 23 defendants, excepting a few of them who are specified, “ are residents of the State of New York, or at present within the State’’^ states of one of the three of such non-resident defendants, service of summons upon whom is now in question, as follows:

“ The last I knew of said defendant, Mary McGroldrick, she resided somewhere in what is now the State of Washington, but she has not been heard from for upwards of ten years, and I cannot, after diligent inquiry ascertain- her present residence ”. And' of the. two others as follows.:

“The said defendants, Owen McLaughlin and ‘Mary’ McLaughlin, the -name ‘Mary’ being fictitious, I suppose reside outside of the State of New York, but I Cannot ascertain after diligent inquiry *69where either of them resides at present time. The said Owen McLaughlin is a sailor and has no fixed place of residence ”.

This final statement of these two, that she supposes they reside outside of the state of Mew York, but “ cannot ascertain after diligent inquiry where either of them resides at present time ”, and that one of them, Owen, is a sailor, “ and has no fixed' place of residence ”, supersedes her prior statement that they are not residents of this state. Then follows the general statement, in the very words of section 439 of the Code of Civil Procedure, that she “ will' be unable with due diligence to make personal service of the summons ” upon them. This, and the statement that she cannot ascertain after diligent inquiry where they reside, have to be dismissed at once as mere statements of conclusions of fact, and therefore hot probative. It was riot for her to state these conclusions at all, but to state facts which proved them, so that the Judge could find and state them. An affidavit is not a pleading, in which allegations of conclusions of fact maybe permissible; on the contrary, it is a statement of facts from which .judicial conclusions may be drawn. Sections 438 and 439 of. the Code of Civil Procedure require “proof by affidavit” that each of the said defendants “is not a resident of the state ” ; or that “ after diligent inquiry, the defendant remains unknown to the plaintiff, or the plaintiff is' unable to ascertain whether the defendant is or is not a resident of the state ”, and “ that the plaintiff has been or will. be unable, with due diligence, to make personal service of the summons. The mere statement of these things in the language of the statute is not proof of them, nor evidence, which is not always proof. They were conclusions for the judge to find, not for the plaintiff to state. It was for her to state facts which would prove them, and thereby give the judge jurisdiction to find them. There is no statement of any fact of inquiry by the plaintiff to ascertain where either of these defendants resided. Mo fact is stated to show that she knew or ever knew them, or anything about them or their residence or whereabouts, or that they sometimes came or never came into the state, except that Owen is a sailor. If she had made inquiry, and stated all the facts ascertained by her, the judge might have been able to find therefrom that they were non-residents of the state, or that the plaintiff was unable to ascertain! whether they \yere residents or non-resi*70dents, or, if the latter, the particular place of their residence; and - also (as the statute requires even in the case of non-résident defendants) that she had been and would be unable with due diligence to make personal service on them within the state—which' would be the case if they were not in the habit of coming into the state frequently. ■ But without such proof .the judge had no jurisdiction .'to .so find. The plaintiff could not decide for herself what “ due diligence ” was,, or that she had exercised it, or that personal service could not be obtained by the exercise of it. That was for the judge *(Kennedy*v. *Lamb,*182 N. Y. 228).

In respect of the other defendant, the affidavit stated the fact that she resided in the state of Washington .about ten years ago.- This,' and the presumption of the continuance of residence, and not of change *(Nixon*v. *Palmer,*10 Barb. 175), sufficed-as proof — to enable! he judge to find that she was a resident of that-state at the time the application was made to him — for a presumption of fact is evidence. And the great distance of that state from here .was a fact which' enabled the judge to find, without eking out too much, that she could not be served in this state with due diligence, any. more ,than if she resided in Germany; for she could not visit here often, and the plaintiff is not requited to await such coming an undue time. ' The case would be different if.she resided in New" Jersey, where she might be of the many thousands who come daily to New York city where they do business or work, and proof that she did not come to the state frequently would be necessary *(Kennedy*v. *Lamb, supra).*

The persistency with which such affidavits have so long continued to state in the language of the statute the conclusions which the ■statute requires the judge to find from proved facts before he may grant the order, instead.of stating the specific facts from which such conclusions may follow and be found by the judge, is most remark^ able in our learned profession, especially in view of the long line of litigation and the serious consequences to titles which it has caused.

The order should be reversed.

Woodward,- Jenks, High and Miller, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and' motion granted, with costs,.