
    REID v. JOHNSON.
    (Supreme Court, Special Term, Westchester County.
    October, 1909.)
    1. Vendor and Purchaser (§ 130)—Rights of Vendee—Marketable Title.
    A vendee is entitled to a marketable title free from reasonable doubt.
    [Ed. Note.—For other cases, see Vendor and Purchaser, Cent. Dig. § 245; Dec. Dig. § 130.]
    2. Process (§ 96)—Service by Publication—Affidavit.
    An affidavit for an order for service of summons by publication, alleging that one of the defendants could not, after due diligence, be found within the state, and, as deponent was informed and believed, was residing and last resided in Greenwich, Conn., but whicfi failed to disclose what, if any, effort had been made to find and serve him within the state, or to state any reason why such effort, if made, would be useless, was insufficient to confer jurisdiction, and an order for publication based -thereon was void.
    [Ed. Note.—For other cases, see Process, Cent. Dig. § 118; Dec. Dig. § 96.]
    3. Vendor and Purchaser (§ 75*)—Delivery of Deed—Time.
    Where a deed to certain property was to be delivered to the purchaser on May 1,1909, in consideration of a transfer of certain personal property and cash, and on that date the title was unmarketable, the vendee was not required to accept performance on July 1st following, she having in the meantime sold the personal property to others.
    [Ed. Note.—For other cases, see Vendor and Purchaser, Cent. Dig. § 113; Dec. Dig. § 75.]
    
      4. Vendor and Purchaser (§ 337)—Breach of Contract—Vendee’s Damages.
    Where a vendee refused to accept performance because the title was unmarketable, she was entitled to recover the amount paid at the time of signing the contract, the expense of a survey, for the examination of the title, and for improvements on the premises, with interest, which amount should be made a lien thereon.
    [Ed. Note.—For other eases, see Vendor and Purchaser, Cent. Dig. § 985; Dec. Dig. § 337.*]
    Action by Emily R. Reid against Beda Johnson.
    Judgment for plaintiff.
    J. Mortimer Bell, for plaintiff.
    Harold Swain, for defendant.’
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 190,7 to date, & Rep’r Indexes
    
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   MORSCHAUSER, ■ J.

This is an action to recover damages for an alleged breach of a contract for the sale of a house and lot situate in the city of Mt. Vernon, N. Y., and to impress a lien upon said premises for the amount of said damages so sustained by plaintiff.

The contract, in writing, was entered into by plaintiff and defendant on the 20th day of March, 1909, and by the agreement the deed was to be delivered May 1, 1909. The purchase price agreed upon for the property was $8,500, $6,200 in cash, and $2,300 by delivering a bill of sale of certain personal property, consisting of machinery, etc., owned by plaintiff, and for delivery of which to defendant, defendant agreed to allow purchase on price of said property, the value of the same being agreed upon between the parties at the sum of $2,300. Thereafter plaintiff and defendant agreed that plaintiff should take possession of the real property for the purpose of making certain improvements thereon. On the 1st day of May, 1909, plaintiff refused to take the deed of the property, because she claimed that defendant’s title to said property was defective, in that the defendant’s title came through a foreclosure of a mortgage in an action entitled, “Jennie A. Denman v. Albert W. Mott and Others.”

Plaintiff claims that the order directing the service of the summons by publication in said action against Albert W. Mott was void, and therefore Mott’s equity of redemption was not cut off; that thereafter the sale was adjourned three times at defendant’s request, and on May 18, 1909, plaintiff refused to grant any further adjournment and so informed defendant, and gave up possession of the property to defendant. The plaintiff was justified in refusing the deed offered by defendant. The objection was good, as Mott’s equity of redemption had not been foreclosed because the order of publication in the foreclosure action was void.

The plaintiff was entitled to a marketable title, free from reasonable doubt. The proof upon which the order directing service of the summons by publication was based in the foreclosure action through which defendant received his title was imperfect, in that the affidavit alleged “that Albert W. Mott, one of the defendants herein, cannot after due diligence be found within this state, and that, as deponent is informed and believes, is now or was last residing in Greenwich, Conn.,” and which disclosed no effort to find the defendant to serve him within the state, nor stated any reason why such effort if made would be useless, is insufficient to confer jurisdiction, and an order of publication based thereon is void. Kennedy v. Lamb, 182 N. Y. 228, 74 N. E. 834, 108 Am. St. Rep. 800.

Defendant asks for specific performance because he tendered a deed executed by Mott and a release of the judgment. This was some time after the personal property had been sold, and after plaintiff had refused to grant any further adjournment. There were several judgment creditors of Mott who had been served in the foreclosure action; and I believe there is some question of doubt under these .circumstances whether the title was marketable. Regardless of this, however, I think to ask the plaintiff to wait from May 1, 1909, to about July 1, 1909, would be unreasonable. The ownership of the personal property that the defendant was to accept in delivery of deed had been changed. The property was held until June 26, 1909, when sold. She could not now obey a judgment directing specific performance. Baumeister v. Demuth, 84 App. Div. 394, 82 N. Y. Supp. 831. The defendant acted in good faith, honestly believing that at the time he entered into the contract to convey he had a good title.

The plaintiff is entitled to recover $850, the amount paid at the time of signing óf contract, $15 for survey, $86.80 for examining title, and $100 for improvement of premises, in all $1,056.80, with interest. Klim v. Sachs, 102 App. Div. 44, 92 N. Y. Supp. 107; Gibert v. Peteler, 38 N. Y. 165, 97, Am. Dec. 785; Walton v. Meeks et al., 120 N. Y. 79, 23 N. E. 1115. This amount is a lien upon the real property. Elterman v. Hyman, 192 N. Y. 113, 84 N. E. 937, 127 Am. St. Rep. 862. Plaintiff is entitled to costs. Settle findings on notice.  