
    Bernard Fink, Respondent, v. Karl H. Wallach, Appellant.
    First Department,
    December, 1905.
    Clerks of court — special deputy clerk appointed in first department is: deputy of .’county clerk ■—delivery of papers to such clerk is delivery to county clerk — action for foreclosure not invalidated by failure of such special clerk to file order for service by publication.
    The special deputy clerk appointed by the justices of the first department of the , Appellate Division under the authority of the Laws of 1895, chapter 553, section 4, is a deputy of the county clerk,, and when papers are delivered to such special clerk for filing and legal fees paid it is a delivery to the county clerk.
    Hence, when an order for the service of summons ón a non-resident by publication in an action.for the foreclosure of a-mortgage, with the papers on which ' it was granted, has been delivered to such special clerk to file, his failure actually to file the. same in the County clerk’s office does not invalidate thé service and furnishes no gfiound for the plaintiff, who had entered into a' contract to purchase such real estate, to refuse to accept the deéd on the ground that defendant’s title is defective because of . said . alleged void foreclosure.
    Such papers inay.be ordered filed nunc pro tunc to correct the record, thé coiirt • having obtained jurisdiction. .
    ' Appeal by the defendant, -Karl H. Wallach, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of' the clerk of the county of Hew York on the 19th day of Hay, 1905, upon the decision of the court rendered after a trial at the Hew York Special Term.
    
      David Gerber, for the appellant.
    
      Nathan Ottinger, for the respondent.
   Houghton, J.:

The plaintiff entered into a contract to purchase certain real estate and made a payment thereon. Defendant tendered a deed, which plaintiff refused to accept on the ground that the title was defective, and he brings this action to cancel his contract and recover his deposit.

Defendant’s title rests upon a judgment of foreclosure obtained against a non-resident mortgagor and owner of the equity. The foreclosure action was begun and notice of pendency filed, and thereafter, on February 5, 1896, on proper papers, an order of publication was signed by the justice sitting at Special Term, Part 2, of the Supreme Court, assigned for the granting of ex parte orders, including orders for service of a summons by publication. The order so signed, and the papers upon which it was granted, were handed to and taken by the clerk of that terry, and part, no fee for filing or entering being demanded or payable therefor. It was the practice at that time to treat orders of publication as court orders, so far as requiring them to be taken in charge by the clerk of the part, instead of returning them to the attorneys to file in the clerk’s office. The summons and notice were published in compliance with such order, and when the judgment roll came to be made up it was discovered that the clerk of Part 2 had never actually taken the order, and the papers accompanying it, to the proper place in the clerk’s office, but had retained them in his possession. Thereupon an order was obtained directing that they be filed nunapro tuno as of February 5, 1896, without prejudice to any proceedings theretofore had. Upon a roll thus made up judgment of foreclosure was entered and a sale had, at which this defendant was the purchaser.

.If delivery of the order of publication, and the papers upon which it was granted, to the clerk of Part 2, intending thereby to file them, was á legal filing in the county clerk’s office, the court obtained jurisdiction of the non-resident owner through service by publication, and the judgment of fo"eclpsure was authorized and the defendant’s title is valid. If it was not such a filing,,the defect being jurisdictional, a subsequent order directing they be filed nunc. jpro tune did not cure it, and the defendant’s title is defective and the plaintiff was justified in refusing it, and his contract was properly canceled.. ■

. We think the filing, was a legal one and that the judgment of foreclosure was valid. It was not. necessary that' the order of publication ^0 entered, for section 442 of the Code of Civil Procedure ■ only requires that the order and the papers upon which it is made shall be filed with, the clerk on or béfore the day of the first publication. This direction to file refers, of Course, to the County, clerk’s office of the county in which the venue of the action is. laid, but such clerk is the clerk of the court, for it is provided by section 19 of article 6 of' the Constitution that “clerks of the several counties shall be clerks of the Supreme Court, with such powers and duties •as shall be prescribéd by law,” and also by section 65 of chapter 280,of the Laws of 1847 that “the clerks of the several counties, including the city and county of Hew York, by virtue of-'-their offices, shall Bo clerks of the circuit courts (and) courts of oyer and terminer * * * within their respective counties.” That the names of. the courts have been changed does not affect this pro-' vision of the law, and the clerk of the.county of Hew York is, by virtue of his office, the clerk of the several parts of the- Supreme Court held thereim Formerly lie appointed his own deputies, but in 1895 the Legislature prescribed that the justices of the Appellate Division of the Supreme . Court in the first department "should “appoint,- and at pleasure remove, for each part or term of the Supreme Court in the First Judicial District, a special deputy to the-clerk of the city and county of Hew York, and all -necessary ' assistants to each of such special deputies, whose duty it shall be to attend each session of the part or term of the Supreme Court to which he is assigned, and keep the minutes thereof and to -perform such other duties therein, as shall be prescribed by the rules made by the said justices of the Appellate Division in such department; such special deputy clerks and assistants to Be subject to tkO'super-vision of the. said county clerk. The minutes of the part Or term of the court to which he is assigned, kept by him, shall be. a part of the records of the Supreme Court, and. shall be kept by the said county clerk in his office, the said county clerk to give extracts from such minutes as now prescribed by law.” (Laws of 1895, chap. 553, § 4.)

The clerk of each of the parts of the court has his special duties to perform, but he is in fact a deputy of the county clerk himself. In the multitude of business coming before the various Special Terms of the first district,*great confusion would arise if attorneys should be allowed to take orders and the papers upon which they are granted away with them to file and enter as they saw fit. The rule, therefore, that all orders and the papers upon which they are made shall be left with the clerk in attendance at the term is a necessary and salutary one. This rule makes it a part of the duties of such clerk to receive such papers, and to see that they are filed and entered, and in such receipt by him of them he is the direct representative of the county clerk, who is not only clerk of the county but of the court as well. The delivery to him, therefore, of signed orders and papers required by law to be filed in the county clerk’s office, or office of the clerk of the court, is a delivery to the clerk himself, and a party delivering orders and papers for such purpose, upon paying such fee as the clerk may be entitled to by law, is not harmed by his failure to actually file them in the county clerk’s office.

The failure of a public official to perform his duty in filing a paper does not impair the rights of an individual who has properly delivered the paper to him, or his authorized representative, for such purpose. (Bishop v. Cook, 13 Barb. 326; Dodge v. Potter, 18 id, 193; Gates v. State, 128 N. Y. 228.) This rule is further illustrated by the fact that the rights of a mortgagee are not affected by the failure of the clerk to index his duly recorded mortgage. (Mutual Life Ins. Co. of N. Y. v. Dake, 87 N. Y. 257.)

The trial court felt constrained to follow the holding in Rothstein v. Rothstein (40 Misc. Rep. 101). In so far, however, as the rule laid down in that case'conflicts with the views herein expressed it must be deenled overruled.

The subsequent order directing the filing of the papers nunc pro tunc was proper for the purpose of correcting the record.

The alleged void foreclosure being the only defect of -Which plaintiff complained, his complaint should have been dismissed.

The judgment should be reversed and a hew trial'granted, with ' costs to appellant to abide the event. ,

O’Brien, P. J., Patterson and McLaughlin, J J., concurred.

• judgment reversed, new trial ordered, costs to appellant to abide event.  