
    Catharine E. Sargeant, App’lt, v. William D. Mead et al., Resp’ts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed May 17,1888.)
    
    Judgment—Service oe process—Proof of.
    In an action to foreclose a mortgage where a judgment in a former action was pleaded as res adjudícala, and the plaintiff in the latter action replied denying that she had been served with the summons and complaint in the former, Held, that the officer’s certificate supported by his positive , testimony, was sufficient to overcome the testimony of plaintiff.
    
      Appeal by plaintiff from a judgment in favor of defendants, entered in Greene county, after a trial before the court without a jury.
    This action was brought to foreclose a mortgage made by one Yenne and her husband. The following named persons were made defendants, viz.: William I). Mead, Jr., and Lena Mead, his wife, Julia Brown and Horace W. Brown, as administrators of Isaac Brown. The defendants, except the Yennes, united in an answer, pleading in bar of plaintiff’s action, the foreclosure of a prior unrecorded mortgage, to which she was made a party defendant, and was served with summons and complaint, a sale of the premises to defendant, Charlotte Mead, who afterwards conveyed to defendant, William D. Mead, Jr., who executed a mortgage to Isaac Brown. Plaintiff replied to said answer denying that she was ever served with the summons and complaint in that action. The facts on the trial appeared to be that one Bosengarden, who was a special deputy of the sheriff of Kings county, had served those papers upon plaintiff, and that the certificate of service was made in the name of the sheriff by the deputy in charge of the certificates. The plaintiff testified that she had never beqn served with those papers, and had never, previous to the trial, seen Bosengarden. Bosengarden testified that on the day specified in the certificate, he had delivered the papers to a woman who said she was- Mrs. Sargeant, and whom he found in the apartments of which Mrs. Sargeant testified she was then the sole occupant.
    
      J. B. Olney, for app’lt; Joseph Hallock, for resp’ts.
   Per Curiam.

If the plaintiff was served with the summons and complaint in the action brought by Mead to foreclose the Sinoud mortgage, then plainly she cannot maintain this action.

That complaint set forth the clause in the deed to Marguerite Yenne which stated the Dumond mortgage and by which she assumed it. That complaint also averred the actual knowledge by the present plaintiff Sargeant at the time of taking her mortgage of the existence of the Dumond mortgage. That complaint demanded that the Dumond mortgage should be adjudged prior in lien to that of the present plaintiff.

Thus the only question is whether the present plaintiff was in fact served with the summons and complaint in the Mead action. Whether the certificate was, or was not, regularly made, being signed by Thorn in the name of the plaintiff is not the real question. If Mrs. Sargeant was in fact served, that is enough. On that point we have first the officer’s certificate, presumed to be true. Next the positive testimony of Rosengarden that he served the summons and complaint on Mrs. Sargeant. To this is opposed that of an interested party. We think the decision of the learned ¡justice on this question of fact was correct.

Judgment affirmed, with costs.  