¶1The proof as to the non-residence of the defendant rested mainly upon information, i. e., what some other person or persons said on the subject when not under oath. If that is to be accepted as sufficient, then such an order as that granted herein can be obtained against any person. For nothing is easier than to secure such information. It does not rise to the dignity of proof, in any legal acceptance of that term, and it has not been accepted save in rare cases, and then only when guarded by careful qualification. This case is not within that class of cases, and the order must therefore be reversed, with ten dollars costs and the disbursements of this appeal.
64 How. Pr. 426
Lyon v. Baxter
Decided January 15, 1883
New York Supreme Court · decided 1883-01-15
Before Davis, P. J., Brady and Dwight, JJ. Appeal from an order denying defendant’s motion to set aside an order for service of summons upon him by publication. The affidavit on which the publication order was obtained was entirely on information and belief, without stating the grounds of deponent’s information. It was accompanied by the usual sheriff’s certificate that defendant was a non-resident, and with due diligence could not be found.
Decided 1883-01-15