New York Law Review

Tag: service by publication

  • Deason v. Deason, 32 N.Y.2d 93 (1973): County Responsibility for Indigent Divorce Publication Costs

    Deason v. Deason, 32 N.Y.2d 93 (1973)

    When an indigent person seeks a divorce and service by publication is required, the cost of publication is the responsibility of the local governing unit (county or New York City).

    Summary

    An indigent plaintiff sought a divorce and requested the County of Albany to pay for the cost of service by publication. The Supreme Court, Albany County denied the motion. The Appellate Division reversed, granting the motion. The New York Court of Appeals addressed the issue of whether the state or local government should bear the costs of publication for an indigent person seeking a divorce. The court held that, in the absence of legislation to the contrary, the responsibility falls upon the local governing unit. The order of the Appellate Division was affirmed.

    Facts

    The plaintiff, a recipient of public assistance with a monthly income of $220 and minimal assets, sought a divorce based on abandonment.

    Due to the inability to personally serve the defendant, service by publication was required.

    The plaintiff moved to proceed as a poor person and requested the County of Albany to cover the publication costs.

    Procedural History

    The Supreme Court, Albany County, initially denied the plaintiff’s motion.

    The Appellate Division, Third Department, reversed the Supreme Court’s decision and granted the plaintiff’s motion.

    The New York Court of Appeals granted leave to appeal to resolve a split among the Appellate Divisions regarding responsibility for these costs.

    Issue(s)

    Whether the Due Process Clause requires the State or local government to pay publication costs for indigent divorce plaintiffs who cannot afford service by publication?

    Holding

    Yes, because in the absence of legislation to the contrary, the cost of publication for indigent divorce plaintiffs should be borne by the local governing unit (county or New York City).

    Court’s Reasoning

    The court relied heavily on Boddie v. Connecticut, which established that states cannot deny indigents access to divorce courts solely due to their inability to pay court fees and costs. Although Boddie involved filing fees and sheriff’s service fees, the court reasoned that the principle extends to publication costs because indigency effectively denies access to the courts in both situations.

    The court acknowledged the absence of legislative guidance on whether the State or local government should bear these costs. It determined that, until the legislature acts, the burden should fall on the local government, viewing it as a charge applicable to the welfare budget.

    The court recognized the potential financial burden on local governments due to publication costs. Therefore, the court clarified that its holding was “without prejudice” to parties seeking to utilize judicially devised methods of service as an alternative to publication under CPLR 308(5).

    The court cited existing laws and procedures that support the allocation of such costs to local governments, including CPLR 1102(b) and County Law Article 18-B, Section 722-e.

    The court stated that failing to provide an indigent the ability to divorce essentially holds the person hostage in a marriage and deprives them of due process under the law.

  • ব্যাংক অফ আমেরিকা কর্পোরেশন v. হের্রিক , 275 N.Y. 339 (1937): Jurisdiction Over Non-Residents Requires Prior Seizure of Property

    ব্যাংক অফ আমেরিকা কর্পোরেশন v. হের্রিক, 275 N.Y. 339 (1937)

    In actions against non-residents, a court’s jurisdiction to dispose of property belonging to the non-resident depends on prior seizure of that property through methods like attachment, injunction, or sequestration; otherwise, the judgment is void regarding the property’s disposition.

    Summary

    This case addresses the extent to which New York courts can exercise jurisdiction over the property of non-residents in separation actions. The New York Court of Appeals held that while the court could grant a separation decree against a non-resident defendant served by publication, it lacked jurisdiction to appoint a receiver over the defendant’s property without prior seizure of that property. The ruling emphasizes that due process requires non-residents to receive notice that their property is subject to the court’s control before a judgment affecting that property can be entered.

    Facts

    The plaintiff initiated a separation action against the defendant, a resident of New Jersey. Initially, the plaintiff obtained an ex parte order to sequester the defendant’s property in New York to cover counsel fees and alimony. However, this order was vacated because no personal or constructive service had been made on the defendant. Subsequently, the plaintiff obtained an order for service by publication, and after such service, a default judgment was entered. This judgment decreed the separation, allowed the plaintiff to apply for alimony and expenses from the defendant’s New York property, appointed a receiver to manage the property, and enjoined the defendant from disposing of it.

    Procedural History

    The plaintiff initially obtained an ex parte order for sequestration, which was later vacated by the lower court. After service by publication and a default judgment, the lower court issued a judgment including separation terms and receivership provisions. The defendant appealed the provisions related to the receivership. The appellate division affirmed this order. The case then reached the New York Court of Appeals.

    Issue(s)

    Whether a New York court, in a separation action against a non-resident served by publication, has jurisdiction to appoint a receiver and dispose of the non-resident’s property within the state without prior seizure of that property through attachment, injunction, or sequestration.

    Holding

    No, because the court’s power to dispose of a non-resident’s property depends on establishing jurisdiction over the property before judgment through some form of seizure, ensuring the non-resident has notice and an opportunity to protect their interests.

    Court’s Reasoning

    The Court of Appeals relied on the principle that while New York courts have jurisdiction to determine the marital status of its citizens, even when the other party is a non-resident served by publication, this jurisdiction does not automatically extend to the non-resident’s property. The court emphasized that due process requires a prior seizure of the property to give the non-resident notice that their property rights are at stake. The court cited Helme v. Buckelew and Pennoyer v. Neff to support the requirement of prior seizure. The court stated, “It must, therefore, appear before a judgment is entered purporting to deal with a non-resident’s property, that by attachment, by injunction, by sequestration, in some manner, the court has laid hands upon his property within the State.” Without such prior action, the court lacks jurisdiction to appoint a receiver or otherwise dispose of the non-resident’s assets. The court distinguished between the right to decree a separation and the right to dispose of property, asserting they are separate and distinct. The absence of prior seizure was a fundamental flaw that could not be cured by provisions for later notice. The court reversed the lower court’s judgment regarding the property provisions.