46 N.Y.S. 707 | N.Y. Sup. Ct. | 1897
On the 8th day of November, -1895, the parties to this action entered into a contract of sale, in and by which
1. That the summons was never legally so amended as to make these infant children proper parties defendant to the action,
2. That the statute under which substituted service of the summons was made on the infants was never intended to apply to infant defendants, and it did not authorize substituted service on them.
3. That the order directing substituted service on the infants did not provide that a copy of it should be served upon the parent, guardian, or other person with whom they resided.
4. That no copy of the summons was, in fact, served upon the parent, guardian, or other person as a part of the service on the infants under the order.
5. That sufficient proof of service of the summons on the infant defendants was never made in the action.
First. The order was granted upon an affidavit showing that the time to answer or demur had expired, and that none of the defend
Second. The action to foreclose was commenced May 1, 1877,. and the próvisions of chapter 511 of the Laws of 1853, as amended . by chapter 212 of the Laws of 1863, in relation to substituted service, were applicable. Chap. 449; § 5,' subd. 4, Laws of 1876. This statute provided for substituted service in two cases: (1) Where a defendant, residing in the state, could not be found. (2) Or, if found, avoided or evaded service; and, in my opinion, was applicable to all defendants, including infants. The title of the act, as well as the language used, seems to negative any other conclusion. It was an “Act to facilitate the service of process in certain cases,” and provided for service on “ any defendant.” It is true infants were not, in express terms, mentioned or referred to in the act, but the use of the words “ any defendant,” indicates as clearly as language can an intent to include them; and to hold otherwise is to impute to a legislative body ignorance of the meaning of the word “ any,” or else by judicial sanction: give to such word a meaning not usually accorded to it. If I am correct in the conclusion that this statute applied to service upon infants, then the infants in question were, under the facts presented, clearly brought within the ■ provisions permitting substituted service upon them, on the ground that they could not be found, “ reached,” “ got at.” And, there-'
Third. The third and fourth alleged defects appear to. be entirely without merit. The order followed the statute almost literally. The statute did not require service upon the parent, guardian or other person with whom the infants resided. But the affidavit upon which the order was. made showed that the amended summons was, in fact, served on the mother of the infants on the
Forirth. The statute did not require that the affidavit of service should be annexed to the papers served. It is, therefore, immaterial whether the affidavit of service made by Sherwood was attached to the amended summons or not. When proof was presented to the court from which it could find as a fact that the summons and complaint had actually been served as directed by the order, that was all that was required. Collins v. Ryan, 32 Barb. 647. The beginning of the affidavit to the effect that the deponent served the annexed summons and complaint can be disregarded, and then the question is presented, what did the affiant do ? The answer is contained in the affidavit filed, namely: that he served the amended summons and complaint on the infant defendants by affixing six copies of said amended summons and complaint to the door, and by mailing through the post-office as required by the order and the statute permitting such service. This made the proof of service complete; and it must.be held to have been the service of the summons and .complaint last amended, since the affiant stated that the infants were defendants, and they were not named as defendánts in any other amended summons and complaint. Litchfield v. Burwell, 5 How. Pr. 342. But if -this affidavit be considered defective and -subject to the criticism made by the plaintiff of service on the infants, then the proof was supplied -by the verified petitions asking for the appointment of a guardian ad litem, which recited that, “ This action has been commenced against, said infant defendants by the plaintiff above named.” The recent case of Murphy v. Shea, 143 N. Y. 78, is directly in point. In that case there was no affidavit of service on the infants, but the father, in an application for the appointment of a guardian ad litem, swore that the summons and complaint had been served upon them. The court said: “The affidavit of the person who actually served the summons is unnecessary so long as there is other -competent proof of such service. * * * At any rate there was enough stated to call upon the court for a decison upon-'the fact of service, and the court must
The other objections made were without merit. As to the un-' paid taxes and assessments, no evidence whatever was offered on the subject, and plaintiff’s attorney stated upon the trial that it was. waived. It was also conceded that at the time fixed for completing the contract the defendant produced a satisfaction of the mortgage
Having reached the conclusion that the title is good and that the ■ other objections are without merit, the remaining inquiry is presented— should, specific performance now be decreed? I think not. The evidence shows that the property was contracted to be sold for several thousand dollars less than its real value, for the reason that the seller was receiving cash. The plaintiff then rejected the title and he elected to stand upon his legal rights, and he cannot now be heard' to say, “ It is true I refused to take the title because I thought it was bad, but the. court having reached the conclusion that it is good, I will, now take it.” To permit srich
Complaint dismissed, with costs, without prejudice to plaintiff’s rights in any other form of action.