Appeal from Judgment on Report of Referee.
Action by Mary Murphy against the Franklin Savings Bank in the City of New York, impleaded with Patrick Murphy. Judgment for plaintiff, and defendant appeals. Reversed, and new trial granted.
[116 N.Y.S. 229] Wilson
M. Powell, for appellant.
Lincoln McCormack, for respondent.
Argued before PATTERSON, P. J., and LAUGHLIN, CLARKE, McLAUGHLIN, and HOUGHTON, JJ.
I am of the opinion that the judgment should be reversed, upon the ground that jurisdiction of the defendant Patrick Murphy was not acquired by the service by publication. The action is to recover the balance of a fund on deposit with the appellant to the credit of the plaintiff and of the defendant Patrick Murphy. The passbook indicates that it was a joint account; that the signature book of the bank, in which the signatures of the parties were entered at the time the account was opened, contains the entry, following the signatures and information concerning the parties required by the rules and regulations of the bank, as follows: " Both signatures required to draw."
The balance on deposit at the time the action was brought was the sum of $3,484.44. Prior to the opening of this joint account, the plaintiff had the sum of $1,223.08 on deposit to her credit with the appellant. On the 29th day of April, 1891, after plaintiff married the defendant Patrick Murphy, they both went to the bank, and she authorized the transfer of her individual account to their joint account. She testified upon the trial that she supposed that either of them, on the production of the bank book, could draw on the account; but she also testified that she knew that her money was transferred to the joint account, and that the signatures of both herself and her husband would be required when money was to be withdrawn. The president of the appellant was permitted to testify, without objection or exception, that, although he did not superintend the transfer of the account, he knew from the records of the bank that it was changed to a joint account, and that the signatures of both were required to withdraw funds. It would seem that additional deposits to the credit of this account were made; but it does not appear that any money was withdrawn. In these circumstances, it is evident that the defendant Patrick Murphy had an apparent interest in this account, and that he should be a party to any action by which the appellant is to be required to pay it over, in order that it may be protected against a subsequent action by him in which other facts may [116 N.Y.S. 230] be proved tending to establish that he has an interest in this fund. He was, therefore, properly joined as a party defendant, and before trial or judgment service of process should be made upon him, by which he will be foreclosed from asserting any claim against the appellant on account of the fund.
I think that the moving papers satisfactorily show that, in the exercise of due diligence, personal service could not be made upon him within this state; but, on the other hand, I am of opinion that the order, in so far as it attempts to adjudicate that the affidavits were sufficient to satisfy the judge that the plaintiff could not " with reasonable diligence ascertain the place or places where the defendant would probably receive matter transmitted through the post office," as provided in section 440 of the Code of Civil Procedure, and dispense with service by mail, was without evidence to support it, and therefore void. The question having been raised directly in the action, the court, perhaps, is not confined to an adjudication as to whether the proof was sufficient to sustain the judgment against collateral attack by the defendant Murphy, but may say that final payment should not be entered on unsatisfactory proof dispensing with service by mail. If so, then it is very clear, from the testimony of the plaintiff given upon the trial, that she knew from a letter which she had personally received from her husband, in answer to one which she had mailed to him through a third party some three or four years before the trial, that he was in Cleary City, Alaska, or Seattle, Alaska, and that he might contemplate asserting a claim to this fund, because, according to her testimony, she had requested of him and he promised to forward to her a power of attorney to authorize her to receive this account, which he never did. This precise information was not contained in the affidavit which was presented to the judge who dispensed with service by mail.
The order for service by publication was based upon the affidavits of the plaintiff, her attorney, and of one Fay. These affidavits showed that the defendant Patrick Murphy had gone to the region known as " the Klondike" ; that the plaintiff had heard from him on three or four occasions, but did not remember from whence the letters were written; that the last information concerning his whereabouts was contained in a letter which she received from a person in Vancouver, British Columbia, in the month of June, 1906, stating that his address at that time was Cleary City, Fairbanks, Alaska. The affidavit contained nothing tending to show any change in his address. It was alleged in the complaint, also, that in June, 1906, plaintiff received a letter from a party in Vancouver, stating that her husband's address at that time was " Cleary City, Fairbanks, Alaska." It appears to be asserted on this appeal, for the first time, in the brief of counsel for plaintiff, that Cleary City and Fairbanks are two different places, and that together they did not constitute a proper post office address. This was not explained in the complaint or affidavits, nor upon the trial, and the court should not now be called upon to speculate as to whether that was a proper post office address in June. 1906, or whether a letter so addressed would have reached the plaintiff. If this was a post office designation at that time, although Cleary City [116 N.Y.S. 231] and Fairbanks are two separate post offices now, that is of no consequence; for the change in the name of the post office should have been cleared up by the affidavits, and, even if Cleary City and Fairbanks were separate post office addresses at that time, still that would not have justified dispensing with service by mail, but would have required that the papers be mailed to the plaintiff at each post office, for it would be apparent that a mistake had been made as to one or the other.
No explanation is offered as to why the plaintiff did not seek the address of her husband from the party through whom she had previously forwarded mail to him, or from the party who in June, 1906, gave her his address. It was merely shown that a letter written by the plaintiff's attorney to the postmaster at Cleary City and Fairbanks, Alaska, asking for the address of the defendant Murphy, was unanswered, and that an answer was received to a similar letter written by him to the postmaster at Vancouver, British Columbia, to the effect that the postmaster could not give the information. These affidavits afforded no evidence of a change of address by the defendant Murphy. It is well known that postmasters are not at liberty to disclose the addresses of people unless special circumstances are presented; and, as it does not appear that any special circumstances were presented which would justify the postmaster in disclosing the information, it is of no importance that in the one instance the letter was not answered, and in the other that an answer was received which may well have been intended to mean merely that the postmaster was not at liberty to divulge information on the subject.
Assuming, therefore, without deciding the question, that in passing upon the sufficiency of the affidavits upon which the application for publication was made, on a review of the trial in the action, we are to be guided by the principle that would be controlling in a collateral attack upon the judgment, still I am of the opinion that the affidavits showed an address of the defendant Murphy where it was probable that matter duly mailed to him would be received by him, and that, therefore, the service by mail could not properly, and should not, have been dispensed with.
It follows that the judgment should be reversed, and a new trial granted, with costs to the appellant to abide the event. All concur, except HOUGHTON, J., who dissents.
HOUGHTON, J. (dissenting).
I think this action is properly brought, and that the order of publication against Patrick Murphy properly dispensed with mailing of notice to him. It is undisputed that at the time the plaintiff was married to the defendant Patrick she had on deposit with the defendant savings bank $1,263 of the money now on deposit, and that she herself made all the deposits from her own money thereafter. It stands, therefore, upon the undisputed proof, that notwithstanding the form of the deposit she is the owner of all the money, and that she at all times has been in sole possession of the bank book. The deposit being in the name of Patrick and Mary Murphy, it was unimportant that on the bank signature book an official had written it was not to be drawn except upon the signatures [116 N.Y.S. 232] of both. The form of the deposit would indicate ...