FIRST DEPARtment, DECEMBER TERM, 1874.

the provisions of the Code on this subject into instruments of injustice.

"The Code has created no rule that authorizes service of a summons by publication because the defendant is a non-resident; but because, being such non-resident, he cannot, after due diligence, be found within the State.' And it is as esential to prove to the satisfaction of the court or judge this latter fact as an existing condition of things, as it is to prove non-residence itself. Where the affidavit simply asserts that the defendant cannot, after due diligence, be found within the State, coupled with proof of nonresidence, the most that can be said for it, is, that the affiant expresses his conclusion of the former fact from his proof of the latter. It is in substance saying, 'the defendant cannot, after due diligence, be found within the State, because he resides out of it' a conclusion which is a non sequitur from the fact stated. In short, it presents only an excuse for not trying to find him. But the Code requires that the fact, that defendant cannot be found, after due diligence, within the State, shall appear by affidavit to the satisfaction of the court or judge.' Due diligence means some effort or attempt to find the party, which the court or judge shall be satisfied is reasonable under the circumstances: and the phrase, 'after due diligence,' can have no other just signification than would be given if it read, after due diligence has been used. What the diligence used has been, should be shown, and the court or judge is to determine whether, under the circumstances, it is or is not 'due,' within the intent of the statute. Of course, the judge or court will determine the question whether the diligence shown is due or not, in view of the other fact that the defendant resides out of the State; for less effort to ascertain that a non-resident cannot be found within the State, would be satisfactory proof of due diligence, than would be required to show that a resident cannot be so found."

The case referred to arose upon a motion to set aside an order of publication; but the reasoning applies with greater force to a case like the present, where nothing is presented by the affidavit but naked non-residence to call for the conclusion of the judge that the party cannot, after due diligence, be found within the State.

In this case the attack upon the order of publication is

FIRST DEPARTMENT, DECEMBER TERM, 1874.

collateral, and made after judgment. The courts will, under such circumstances, make every presumption and intendment favorable to the upholding of the judgment, that the facts of the case will permit. And slight facts and circumstances by which it may be said the mind of the judge was set in motion to determine the fact of which he is required to be satisfied, have been held sufficient on a collateral inquiry after judgment. But no case has yet been upheld, in which the affidavit and order were so utterly bald as in the present. In Von Rhade v. Von Rhade,* this court went to the outer verge of judicial intendment to sustain the judgment. The affidavit in that case stated that the defendant "cannot after due search, be found within this State, and is in fact a resident of Berlin, in the empire of Germany, where he now actually resides;" and the order recited that it satisfactorily appeared to the judge, that the defendant could not, after due diligence, be found within this State. The court, in the opinion of DANIELS, J., fully recognized the requirements of the Code, as above laid down, but held that the language of the affidavit was sufficient to support the conclusion of the judge after judgment in the action. The defendant was let in to defend on the merits. †

The conclusion is, that the objection of the appellant to the title was well taken. The order appealed from should be reversed with ten dollars costs, besides disbursements, and the motion granted with costs.

DANIELS and LAWRENCE, JJ., concurred.

Ordered accordingly.

* 2 N. Y. Sup. Ct. Rep., 491.

And see Waffle v. Goble, 53 Barb., 517; Peck v. Cook, 41 id., 549; Easterbrook v. Easterbrook, 64 id., 421; Miller v. Brinkerhoff, 4 Denio 118; Welles v. Thornton, 45 Barb., 390; Wortman v. Wortman, 17 Abb., 67.

FIRST DEPARTMENT, DECEMBER TERM, 1874.

IN THE MATTER OF THE PETITION OF RICHARD WILLIAMSON, JR., RESPONDENT, TO VACATE AN ASSESSMENT FOR A SEWER IN SEVENTY-SECOND STREET, ETC., v. THE MAYOR, ETC., OF NEW YORK CITY, APPELLANTS.

Assessment-application to vacate — error in copies of papers served — Chapter 321, Laws of 1865-construction of - Chapter 580, Laws of 1872.

Where, on an application to vacate an assessment, the copy of the petition served upon the corporation counsel differs in some respects from the petition presented to the court, but it does not appear that the corporation counsel has been prejudiced thereby, such defect cannot be urged on an appeal from an order vacating the assessment.

Chapter 321, Laws of 1865, providing that all sewers thereafter constructed, shall be in accordance with the general plan devised by the Croton aqueduct board for the sewerage of the particular district in which such sewer is to be laid, "subject to such modifications as may become necessary in consequence o alterations made in the grade of any street or avenue or part thereof in said district, or otherwise," does not require that such modifications should be made to appear on the general plan or map, or that new plans or maps showing them should be filed.

Where an application is made to vacate an assessment for laying a sewer, con. structed in accordance with plans and specifications prepared and signed by the Croton aqueduct board, on the ground that it is not in conformity with the general plan for the district in which it is built, and there is no evidence to show whether or not the general plan has been modified by the board; held, that the application should be denied.

As the board, by the contract and the plans connected therewith, approved of the change in the plan of the sewerage for that district, their failure to decide upon such change, at a meeting called for that purpose, and to prepare and file a map thereof, was an "omission" within the seventh section of chapter 580, Laws of 1872, and the assessment was not thereby invalidated.

APPEAL from an order made at the Special Term, reducing an assessment for a sewer.

In the paper which was served upon the corporation counsel, and which purported to be a copy of the petition to be presented to the court, the fourth ground of objection was as follows:

"4th. That no general plan or map has ever been made by the Croton aqueduct board for the sewerage of the particular district in which said sewer is constructed, to determine and show the location, course, size and grade of each sewer and drain below the HUN-VOL. III.

9

FIRST DEPARTMENT, DECEMBER TERM, 1874.

surface and below the established grade of the streets and avenues in said district."

While in the petition actually presented, it was stated as follows: "4th. That said sewers were not constructed in accordance with the general plan devised by the said Croton aqueduct board for the sewerage of the particular district in which such sewers are constructed."

Wm. Barnes, for the appellants.

Neville & Andrews, for the respondent.

DAVIS, P. J.:

The evidence in this case failed wholly to show that the petitioner was the owner of the lands affected by the assessment, at the time of filing his petition. Within the ruling of this court, In the Matter of the Petition of Phillips,* he failed to show any title to have the assessment vacated or reduced. The act of 1858 gives the remedy therein provided to "the party aggrieved;" and the second section of that act shows that this phrase was used by the legislature as synonymous with the words, "the owners of property."+

The court below treated the petition, containing the objection upon which its decision was based, as regularly before it. It did not appear that any prejudice had arisen from the fact that the copy served on the corporation counsel did not contain that objection. If it had appeared that further notice was necessary, the court would doubtless have ordered a corrected copy to have been served, and postponed the hearing for that purpose. We think the irregularity in the copy served cannot be urged on this appeal.

The Special Term made its order upon the ground that the sewers, for which the assessment was made, were not constructed in conformity to the "general plan" devised and adopted by the Croton aqueduct board for the sewerage of the particular district. The plan provided for but one sewer in Seventy-second street,

* 2 Hun, 212.

Laws of 1858, chap, 338, and Laws of 1874, chap. 312; Townsend v. Goelet, 11 Abb. Pr., 187.

FIRST DEPARTMENT, DECEMBER TERM, 1874.

located in the center of the street. Two sewers, one on each side of the street, of smaller dimensions, were constructed under contracts made by the board therefor, in conformity to plans connected with the contract and made part thereof. The second section of the act of 1865, * entitled, "An act in relation to sewerage and drainage in the city of New York," required the Croton aqueduct board to lay out the city into as many sewerage districts as they should deem necessary for the general purposes of the act, and to make maps or plans, containing various particulars, " for the purpose of exhibiting a complete plan of the proposed sewerage therein." The fourth section provided, that, "upon the completion of the map or plan for the drainage of any sewerage district, such map or plan shall be the permanent plan for the sewerage of such district, subject, however, to such modifications as may become necessary in consequence of alterations made in the grade of any street or avenue or part thereof in said district, or otherwise." The section then provides for the filing of copies of such complete plans "in the offices of the common council, the comptroller, street commissioner and city inspector." The eighth section of the act declares that, "it shall not be lawful, hereafter, to construct any sewer or drain in the city of New York, unless such sewer or drain shall be in accordance with the general plan devised by said. Croton aqueduct board for the sewerage of the particular district in which such sewer or drain is proposed to be constructed."

To ascertain the true construction of the act of 1865, its several provisions are to be read together. The prohibition of the eighth section must be considered in connection with the provisions of the fourth section, which declares the general plans to be "subject to such modifications as may become necessary in consequence of alterations made in the grade of any street or avenue or part thereof in said district, or otherwise." The eighth section is to be read as though it inhibited constructions otherwise than in accordance with the general plan of the district, as affected by the modifications allowed by the fourth section. If this be not so, then the slightest variation in the location, course, size, grade, or depth below present surface or established grades of streets, all of which under the second section of the act are to be shown upon

*Chap. 381, of the Laws of 1865.