133 N.Y.S. 340 | N.Y. App. Div. | 1912
This is an appeal from an order of the County Court of Kings county, which relieved a purchaser at a foreclosure sale from the obligation of his bid, and which directed the return of the moneys paid on deposit by the purchaser. The action was brought to foreclose a mortgage executed by several parties defendant, of all of whom but one the court acquired jurisdiction by personal service of the summons within the State'. ■ One of the defendants named in the summons, Mary J. Meserole, was served by substituted service within tike county of Kings under an order of the County Court, dated May 10, 1911, and an affidavit of such service was filed in the County Court on May 17, 1911. She failed to answer or appear in the action. On dime 12, 1911, an order was entered on due proofs of regularity, and on notice of motion to such defendants as had appeared in the action, which provided “ that the plaintiff have
The purchaser contends that the court was without jurisdiction of the defendant Mary J. Meserole, who was served by substituted service,-and that as to her the judgment of foreclosure has no conclusively binding effect. This defect is said to have arisen because, as the purchaser contends, the court failed to take proof of the cause of action set forth in the complaint. Neither the order appointing the referee nor the final judgment of foreclosure recites the taking of such proof by the court itself, nor does the order of reference expressly direct the taking of such proof by the referee. The failure of the judgment to recite the taking of such proof would not in itself raise an inference that such proof had not been taken, for the presumption of regularity would prevail in absence of direct proof to the contrary. (Stone v. Smith, 31 Misc. Rep. 740.) On the motion below, the purchaser’s attorney submitted an affidavit in which he stated positively that such proof had not been taken, and there was no contradiction thereof. The failure on the part of the court to take proof as to the cause of action set forth in the complaint is claimed to be a jurisdictional defect as to the party defendant served by substituted service, because it is provided in section 1216 of the Oode of Civil Procedure in part as follows: “Where the summons was served upon the defendant without the State, or otherwise than personally, if
Upon the facts appearing in this record it appears that the County Court acquired jurisdiction of the person of the defendant Mary J. Meserole when the substituted service of the summons was complete, and that it had, likewise, full jurisdiction of the subject-matter of the action. Having such jurisdiction over person and subject-matter, its failure to observe the directions of section 1216 did not necessarily oust the court of jurisdiction, but may have, at most, amounted to an irregularity. Whether such irregularity is serious enough to be sufficient to render unmarketable a title acquired under the judgment of foreclosure and sale remains to be seen upon further inquiry.
As a general rule, an irregularity which does not render void the judgment under which the sale was had does not affect the marketability of the title under the sale. (Parish v. Parish, 175 N. Y. 181; Sproule v. Davies, 171 id. 277; Corbin v.
The question here presented as to the necessity of a compliance with the directions of section 1216, and the effect of a failure to so comply upon the judgment entered in the action, is apparently a new one, as no authorities strictly in point have been presented to this court. We deem the question sufficiently doubtful to sustain the order of the court below so far as it relieved the purchaser at the sale from the obligation of his bid. Yet, as there is nothing in the affidavits showing what expense was entailed upon the purchaser because of his bid, the order should be modified by striking therefrom the provision as to reimbursement by the plaintiff as to such expenses, and as so modified affirmed, with ten dollars costs and disbursements.
Jerks, P. J., Hirschberg, BuRR and Thomas, JJ., concurred.
Order modified in accordance with opinion, and as so modified affirmed with ten dollars costs and disbursements.