
    Catherine Close, Plaintiff, v. William M. Calder Company, Defendant.
    Second Department,
    June 17, 1910.
    Process — service by publication—partition — real property—failure to name defendants in notice — marketable title.
    Where the summons in a partition action is served by publication, failure to name the defendants in the notice required by section 443 of the Code of Civil Procedure does not deprive the court of jurisdiction, or defeat a title to the prem ises derived through the partition sale, especially if it appear that all the defendants acknowledged receipt of copies of the summons.
    Submission of a controversy upon an agreed statement of- facts pursuant to section 1279 of the Code of Civil Procedure.
    
      James A. Sheehan, for the plaintiff,
    
      Harry Percy David, for the defendant.
   WOODWARD, J. :

The plaintiff and defendant entered into a contract for the purchase and sale of certain real estate situated in the borough of Brooklyn. The contract provided that the plaintiff should deliver to the defendant a full covenant and warranty deed of the premises, free from all incumbrances. The defendant objects on the ground that the title offered by the plaintiff is unmarketable, for the reason that the plaintiff derives title through a partition sale in which she was' plaintiff and Andrew Blakistone and his four minor children were defendants, and that the service through an order of publication was defective, in that the notice required by section 442 of the Code of Civil Procedure was not addressed to the defendants men-, tioned. There is no question that the notice accompanied the summons, naming the defendants, and was duly published. It appears from the record that Andrew Blakistone, the father of the • minor defendants, acknowledged receipt of a copy of the summons and complaint, sent by mail, so that there is no doubt that all the purposes designed by the'statute have been subserved, and'the only question here presented is, we believe, fully answered by the discussion of Daniels, J., in the case of Loring v. Binney (38 Hun, 152; affd. without opinion, 101 N. Y. 623), which held in a similar case that the failure to name the defendants in the notice did not operate to deprive the court of jurisdiction or to defeat a title. The Loving Case (supva) is cited with approval in Mishkind-Feinberg Realty Co. v. Sidorsky, (189 N. Y. 402, 406) in support of the proposition that Unimportant and unessential variations from the form of notice prescribed not affecting the substantial rights of the defendant are irregularities which may be cured by amendment pursuant to the general authority of the court to amend a process, pleading or. other proceeding in furtherance of justice,” and we are of the opinion that it is controlling here.

The plaintiff should have judgment against the defendant for the specific performance of the contract.

Jenks, Burr, Rich and Carr, JJ., concurred.

Judgment for plaintiff on submission of controversy, with costs.  