Brainerd agt. Heydrick. SUPREME COURT. CYPRIAN S. BRAINERD, JR. agt. JESSE A. HEYDRICK, and others. The subscription of the name of an attorney issuing a summons, is not required to be made by himself personally; but it may be made by another with his authority. It necessarily follows, that his name may be printed, as a substitute for his written signature. (This agrees with the case of The Mutual Life Ins. Co. agt. Ross, 10 Abb. 260, and is adverse to the case of The Farmers' Loan and Trust Co. agt. Dickson, 17 How. 477.) It is well settled, that where a person is in the habit of using documents with his name printed thereon, this will be his signature within the meaning of the statute of frauds. The name of an attorney issuing a summons, is as effectually disclosed when it is printed as if it were written, and his responsibility to the defendant and to the court, in either case, is the same. In granting an order of publication for the service of summons in an action for the foreclosure of a mortgage, the Code requires that it shall appear "by affidavit to the satisfaction of the court or a judge" granting the order that the person on whom the service of the summons is to be made, cannot, after due diligence be found in this state. There is no good reason why this may not be shown by an affidavit properly made and forming a part of the records of the court, although made in another action, and not in the particular action in which the order is asked. In an action for the foreclosure of a mortgage, the non-residence of the defendants is not necessary to be shown. It is sufficient to establish the fact satisfactorily that they could not, after due diligence, be found within this state, so as to enable the plaintiff to effect the service of the summons on them. A copy order appointing a guardian ad litem of a non-resident infant defendant, is not invalid by reason of being deposited in the post office two days before the order and the affidavits on which it was founded were filed, where it appears that the order was made on the day of the deposit. The order becomes effectual when filed, from the time it is granted. The previous deposit is, at most, an irregularity that can be remedied at any time by filing the order nunc pro tunc. Kings County Special Term September 1866. THIS is an application on behalf of a purchaser of mortgaged premises sold under a judgment of foreclosure and sale, to be discharged from his purchase on the following grounds: 1st. That the summons is not subscribed by the plaintiff or his attorney. 2d. That the affidavit on which the order of publication was granted is insufficient; and 3d. That no copy of the order appointing a guardian ad Brainerd agt. Heydrick. litem of the non-resident infant defendant, was served according to the terms of the order. WM. HENRY ARNOUX, for the purchaser. LOTT, J. These grounds will be examined in the order they are above stated: 1st. The first objection is based on the fact appearing by the judgment roll, that the names of the plaintiff's attorneys are printed at the end of the summons forming part of the roll. This, it is claimed, is not a compliance with the requirements of the Code, which provides that "the summons shall be subscribed by the plaintiff or his attorney," and shall require the defendant to "serve a copy of his answer on the person whose name is subscribed to the summons," &c. It then becomes necessary to determine whether a summons issued by an attorney, with his name printed at the end thereof, is subscribed by him within the meaning of that provision. Two cases were referred to on the argument of the motion in which the question has been considered, and I have been unable, after a careful examination, to find any other, and in those the learned justices who examined it arrived at different conclusions. The first was the case of The Farmers' Loan and Trust Company agt. Dickson, reported in 17 How. Pr. Rep., p. 477; and also in 9 Abb. Pr. Rep., p. 61, which was decided by Justice INGRAHAM, at special term in the first district. A motion was there made by a purchaser to be relieved from a sale, on the ground, among others, that the name of the attorney was printed at the end of the summons, and the learned justice after considering two other objections that were made to the proceedings, and stating that one of them could be remedied by filing an affidavit of the summons on one of the defendants "nunc pro tunc," says in relation to that now under consideration: "The summons should have been signed by the plaintiff or his attorney (§ 128), and the Brainerd agt. Heydrick. printed name of the attorney was a nulity. As the copy served was correct, the plaintiff might also file a copy properly signed nunc pro tunc." The other case was that of The Mutual Life Insurance Company agt. Ross, reported in a note at page 260 of 10 Abb. Pr. Rep., in which the defendant moved to set aside the summons served upon him, on the ground that the name of the plaintiff's attorney was printed at the end thereof. On the argument of that motion, the decision of Judge INGRAHAM was referred to and commented upon by counsel, and the report of the case closes with saying that "E. D. SMITH, J., after consideration, denied the motion with costs, upon the ground that a printed subscription is a substantial compliance with the statute, and the objection was technical, and if there was a defect it was immaterial." Neither of these learned justices appears to have assigned. the reasons for the conclusion at which he arrived. I am, therefore, obliged to examine the question embarrassed by their difference of opinion, without the benefit of the aid which those reasons would have afforded. In doing this it may be useful to ascertain the scope and extent of the decision of Justice INGRAHAM. He treats the words "subscribe" and "sign," as synonymous; and when he says that the summons should have been signed by the plaintiff or his attorney, and that the printed name of the attorney was a nullity, he clearly indicates that such signature should have been in the proper handwriting of such attorney. If this was his meaning, he was, in my opinion, mistaken. Previous to the adoption of the Code, it was provided by the Revised Statutes (2 Rev. Stat. p. 278, § 9), that all writs and process issued out of any court of record, should before the delivery of the same to any officer to be executed, "be subscribed or indorsed with the name of the attorney, solicitor or other person," by whom the same was issued; and yet in the same title, at page 286, section 70, it is declared that "if any attorney or solicitor shall knowingly permit any person, not being his general law partner, or a clerk in his office, to sue out any process, or to prosecute or defend any Brainerd agt. Heydrick. action in his name, such attorney and solicitor, and every person who shall so use the name of any attorney or solicitor, shall severally forfeit to the person against whom such process shall have been sued out, or such action prosecuted or defended, the sum of fifty dollars." This last provision is still in force, and by exempting the general law partner and the clerks of an attorney, from the penalty imposed for using his name in issuing process, and prosecuting and defending actions, it is clearly implied that it may be so used by them by his permission and authority. Although the Revised Statutes provide that the process "shall be subscribed or indorsed with the name of the attorney, solicitor or other person," issuing the same, and the requirement of the Code is, that "the summons shall be subscribed by the plaintiff or his attorney;" the difference in the phraseology does not, in my opinion, justify the conclusion that a difference in practice was intended. It will be observed that the use by a clerk of the attorney's name, appears to be authorized under the provision above referred to, in actions in which the attorney himself has no interest or connection, and it has, I believe, been the general practice of attorneys to allow a clerk in their office to sign their name to process issued by them. The authority given to the clerk by the attorney in such a case, makes it his act, and he is responsible therefor to the court and the party proceeded against, and I have found no case where the practice has been called in question. There certainly appears no reason in principle why it should not be permitted. There are many instruments which the law requires to be subscribed or signed by the parties to be bound thereby, and yet a subscription or signature by him personally is not necessary. Thus the statute regulating the execution of wills, after expressly providing that every will "shall be subscribed by the testator," recognizes a signing of his name by another person, as a compliance with that provision, by a subsequent requirement that "every person who shall sign the testator's name to any will, by his direction, shall write his own name as a witness to the will;" and it was Brainerd agt. Heydrick. distinctly decided in Robins and others agt. Coryell (27 Barb. Sup. Co. Rep., p. 556), after a full and careful examination of the question, that the writing of the testators's name to a will, by another person, in his presence and by his direction, is a subscription by him within the meaning of that statute; and an opinion to the same effect is expressed by Chancellor WALWORTH in Chaffee agt. Baptist Missionary Convention, &c. (10 Paige, p. 91, &c.), and by HAND, J., in Butler agt. Benson (1 Barb. Sup. Co. Rep. p. 533, &c). So the statute of frauds, requiring certain agreements to be in writing, and to be signed or subscribed by the party to be charged therewith, is satisfied by the signature or subscription of the name of such party thereto by another person duly authorized to make it. If such is the rule applicable to statutes, in the case of wills and other written instruments requiring the subscription of parties, I am unable to discover any reason why a different construction should be given to that in relation to legal process. The views thus presented lead us to the conclusion that a subscription of the name of an attorney issuing a summons, is not required to be made by himself personally, but that it may be made by another with his authority; and assuming this to be correct, it seems to follow that his name may be printed, as a substitute for his written signature. A party may in the ordinary transactions of business, become bound by any mark or designation he thinks proper to adopt and use for his name. It was decided in Brown agt. The Butchers' and Drovers' Bank (6 Hill's Rep. p. 443), that Brown was liable as indorser, by an indorsement of the figures "1, 2, 8," made by him in lead pencil, no name being written thereon, it also appearing that he could write. In that case, the court instructed the jury that if they believed the figures were made by Brown as a substitute for his proper name, intending thereby to bind himself as an indorser, he was liable, and this ruling was sustained on review. So it has been held by the general term in this district, in the case of The Mechanics' Bank agt. Sullivan, heard in December, 1862 (but not reported I believe), |