
    Terence McCracken, Resp’t, v. William C. Flanagan et al., App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 13, 1893.)
    
    Execution — Title oe purchases at sale.
    Where a judgment is declared void on the ground that the summons was not properly served, the title of a purchaser of real estate at a sale on execution issued upon such judgment fails with the fall of the judgment.
    Appeal from judgment in favor of plaintiff in an action of ejectment.
    
      Thomas J. McKee, for app’lts; Eugene S. Ives, for resp’t.
   Dykman, J.

This is an appeal from a judgment in favor of the plaintiff in an action of ejectment. The cause was tried before a judge without a jury and decided by him in favor of the plaintiff, and from the judgment entered upon such decision the defendants have appealed.

The plaintiff claims under a deed from Henry Kahle, who was the owner of the premises at one time, and in the possession of the same.

The defendants claim under a deed from the grantee of a sheriff, by virtue of a sale of the premises under a judgment against Henry Kahle, the grantor of the plaintiff.

The service of the summons in the action against Kahle was made by publication, and the affidavit upon which the order for publication was made was insufficient and the judgment was held to be void for that reason by the court of appeals.

The title of the defendants failed with the fall of that judgment, and their contention that the deed of conveyance from Kahle to the plaintiff was executed while the premises were in the possession of a person claiming tinder an adverse title is unsupported by the facts.

The judgment should be affirmed, with costs.

Barnard, P. J., concurs; Pratt, J., not sitting.  