
    Morris Steinhardt, Appellant, v. John O. Baker, Respondent.
    
      iSubstituted servicemay be madeupon infants concealed from service by their mother — proof of service under the order — a contract vendee alleging a title to bebad cannot change his claim to one for specific performance.
    
    The statute providing for substituted service of process -on “any defendant” who avoids or evades service (Laws of 1853, chap. 511, as amended hy Laws of 1863, chap. 212, and made applicable to all actions commenced before May 1, 1877, by Laws of 1876, chap, 449, § 5, subd. 4) applies to the service of an amended summons upon infants who have been made defendants in an action of foreclosure begun before that date; and the act of their mother, having their care, custody and control, in refusing to permit them to be seen, so that service may be made upon them, must be imputed to them; and a subsequent order for substituted service upon them is valid.
    What proof of service of the summons and complaint, as directed by the order, is sufficient, considered by McLaughlin, J.
    Where a contract vendee refuses to accept a title upon the ground that it is defective, and brings an action in which he seeks to establish the damages sus- - tained by him by reason of a breach of the contract, he cannot, when it is decided that the title is good, insist that specific performance be decreed.
    
      Appeal by the plaintiff, Morris Steinliardt, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 10th day of July, 1897, upon the decision of the court rendered after a trial at the New York Special Term dismissing the complaint.
    
      Eugene Frayer,ioi' the appellant.
    
      Charles E. Miller, for the respondent.
   Barrett, J. :

But for some expressions in the opinion of the learned trial justice, which, were they unqualifiedly adopted, might lead to further useless litigation between the parties here, we could properly dispose of this appeal by an affirmance upon that opinion. We entirely agree with the learned justice in his general treatment of the case. The plaintiff rejected the title upon various grounds, all of which were untenable. His main objection was that there were certain irregularities in the conduct of a foreclosure suit through which the defendant derived title ; and he contended that these irregularities vitiated the judgment which followed. It is insisted on his part that the court, in that foreclosure suit, acquired no jurisdiction over certain infant heirs of one William Fitzpatrick, who was the owner of the property in question and who died intestate. The particular objection is that these infants could not be brought in and served with process by the proceeding known as substituted service. This subject is fully and ably considered by the learned trial judge, and we can add but little to his reasoning. A special point was made both below and here that the act which, at the time when this foreclosure suit was pending, authorized substituted service in certain cases, did not in terms specify' infant defendants, and that consequently infants were not embraced within the general reference in the act to “ any defendant.” The learned trial judge overruled this point, holding that the use of the words, “any defendant” indicated, as clearly as language could, an intent to include infants. In this conclusion, we think, he was fortified not only by the cases which he cites, but by the more direct authority of Wheeler v. Scully (50 N. Y. 667). There the question arose as to publication against unknown owners. It was claimed that the judgment did not bar infants, for the reason that the service of the summons was not sufficient as against them. The Court, of Appeals, however, overruled the objection, saying that if the unknown heirs were infants, they were bound by the service, as subdivision 6 of section 135 of the then Code of Procedure made no exception in case the .unknown defendants were infants. This authority seems to settle the principle that infants are deemed to be included in the general provisions of such a statute, unless expressly excepted. All the other objections made to this foreclosure judgment are equally untenable. They' are founded either upon alleged irregularities of a' trivial character, or else looseness in mere matters of detail.. They do not go to the jurisdiction, nor do they affect the validity .and binding force of the judgment. ;

The other objections which the plaintiff made to the title are fully considered by the learned trial justice, and we need add nothing to his conclusions with regard to those objections. He also found upon sufficient evidence'that the plaintiff, -prior to the time fixed for the completion of the contract, had waived all objections to the validity of the title except the objections to the foreclosure-decree.

In this view of the case it is evident that the plaintiff has no-cause of action against the defendant either at law or in equity. If the title was good, the breach was his, not the defendant’s. The court having decided, upon the issue tendered by the plaintiff, that the title was good, the complaint was properly dismissed. In view of this decision, however, it was inconsistent to dismiss the complaint, “without prejudice to the rights of the plaintiff in any other-form of action.” The tendency of that expression in the opinion and decree was to encourage the plaintiff to bring a fruitless action at law. Upon the other hand, whether the title was good or bad,, the plaintiff, because of the position which he assumed, was not entitled to equitable relief. The facts as to his attitude are quite clear. After several adjournments and some negotiations, he finally rejected the title and declined to accept the defendant’s deed. He notified the defendant, both verbally and in writing, that, in his judgment and that of his advisers, the title was bad, and that he would not accept it. In effect, he elected to treat the contract as at -an end, because of the defendant’s inability to give him a good and. marketable title. His main objection went, as we have seen, to the foundation of the defendant’s title and was incurable. Having taken this position, and, in substance, reasserted it in his present ■complaint, he must fail in his demand for equitable relief.

It will be observed that this is not a case where the vendee holds to his contract and asks for alternative relief, namely, specific performance, or damages if that cannot be obtained. Under such circumstances it has been held that, even after it is shown that specific performance cannot be had, the action may be retained to award damages. (Barlow v. Scott, 24 N. Y. 40; Sternberger v. McGovern, 56 id. 12.) Hor is it a case where the title, defective when the action was commenced, can be made good by the defendant at the time of the trial. Still less is it within the principle that where the original objection to the title is not wanton or frivolous, and both parties in their pleadings ask for specific performance against the other, the court may, especially where there has been no material change of circumstances, decree specific performance. (Greenblatt v. Hermann, 144 N. Y. 13; Kahn v. Chapin, 152 id. 305.)

Here the plaintiff has plainly elected to consider the contract at . an end, while the defendant rests upon the plaintiff’s breach. In fact the plaintiff has alleged throughout that the defendant has no title, that the fee of the premises is actually vested in other people, ■and that, consequently, the contract is impossible of execution. The defendant joins issue upon these allegations, makes no affirmative claim .to specific performance, and simply demands that the complaint be dismissed. If the plaintiff is right in his view, the contract- was as impossible of execution at the time of the trial as it was when the action was commenced. It comes to this, that the plaintiff asserted, and still asserts, that the defendant’s title is hopelessly bad,- and for that reason he declined, and still declines, to accept it. In that attitude he comes into equity and asks the court to decide whether he is right or wrong in that view, and thereupon to give him whatever judgment, is appropriate to the correct view. In other words, if he is right, he wants damages; if he is wrong, he wants specific performance. It is apparent that the court cannot help him in this wise.

The only exception taken upon the trial which calls for special consideration was the refusal of the learned judge to strike out the testimony of Mr. Barney (in whose interest the title seems to have been held by the defendant), to the effect that there was no tenant in possession of the property, and, consequently, no incumbrance growing out of any such tenancy. The special point of the objeciion to this testimony is that it contradicts an express admission of the answer. . The point is not well taken. There is no unqualified, admission, in, the answer, of any such tenancy. The admission that ■Anna Spéir. was lawfully in possession' of the premises is coupled with the statement that she was in possession simply as a tenant at will of defendant, and that she offered to immediately quit and sur.render the premises, as the plaintiff well knew. It is also coupled with the statement that the defendant was in possession, on the day fixed for the complétion of the sale and was able and offered to give the plaintiff possession free from all incumbrances. The admissions' of the answer' mitst be taken in their entirety. If so taken, there was no incumbrance, and the defendant was able'and offered to give full and. exclusive possession on the day when the title was to be closed. The testimony was. in that view harmless. If.,, however, the entire admission be not taken, the testimony was clearly proper.

For these reasons, as well as those assigned by the learned trial justice, the complaint as in equity .for specific performance was properly dismissed;. and the judgment should, therefore, be affirmed^, with costs.

Rumsey and O’Brien, JJ., concurred; Van Brunt, P. J., concurred in result. \

Judgment affirmed, with costs. 
      
       McLaughlin, J. :
      On the 8th day of November, 1895, the parties to this action entered into a contract of sale, in and by which the defendant agreed to sell and the plaintiff to purchase certain real estate, situate in the city of New York, for the sum of $65,000, and the plaintiff then paid,, to apply on the purchase price, the sum of $2,000. On the thirteenth of January following, the time fixed for the completion of the contract.,, the defendant tendered to the plaintiff a deed, proper in form, and the plaintiff was ready and willing to pay the balance of the purchase money; but he objected to the defendant’s title, which is derived from a sale made in pursuance of a judgment of foreclosure in 1877, in the action of Freeman v. Bull & Others, upon, the ground that the foreclosure proceedings were defective, in that the court never acquired jurisdiction of certain parties defendant, and that the.title was not marketable. When the foreclosure proceeding referred to was instituted one William Fitzpatrick held the title to the land in question, subject to the mortgage then sought to be foreclosed, and he and his wife,. Adele O., were made parties defendant, and, as such, were duly served With a copy of the summons ; but before judgment William died, leaving six infant children. Steps were thereafter taken .to make these children parties defendant in the action in the place of their father ; and whether the proceedings taken were sufficient to acconiplish that purpose is the principal question to be determined in this action. The plaintiff insists, that the court never acquired jurisdiction of these, infants so as to deprive them of the equity of redemption, and that defendant’s title is, therefore, defective. His objection is based upon the following alleged defects in the foreclosure proceedings, which will be considered in the order named:
      
        First. That the summons was never legally so amended as to make these infant children proper parties defendant to the action.
      
        Second. That the statute under which substituted service Of the summons was made on the infants was never intended to apply to-infant defendants, and that it did not authorize substituted service on them.
      
        Third. That the order directing substituted service on the infants did not provide that a copy of it should be served upon the parent, guardian or other person with whom they resided.
      
        
        Fourth. That no copy of the summons was, in fact, served upon the parent, guardian or other person as a part of the service on the infants under the order.
      . Fifth. That sufficient proof of service of the summons on the infant defendants was never made in the action.
      
        First. The order was granted upon an affidavit showing that the time to answer or demur had expired, and that none of the defendants had either answered or demurred except the defendant William Fitzpatrick, and that he had died leaving six children, two over and four under the age of fourteen years. The order asked was, that the summons and complaint be amended “by striking out the name of the defendant William Fitzpatrick and adding: additional parties defendant thereto.” This the order did. And, while it is true that the order Was indefinite as to the “ additional parties defendant” to be added, it, however, does'not follow that by reason thereof it was rendered invalid. And, in this connection, it must be borne in mind that no one was affected or injured by the amendment permitted under this order. The-mother of the infants could not complain, because she was already in default; and the representatives of the father, likewise, could not complain, because no judgment against his estate was asked for or rendered. The infants represented the fee upon the death of the father, and they were only affected by the proceedings to foreclose subsequent to the amendment. The order, therefore, was valid, so far as these infants were concerned, since they were actually made defendants to the action by virtue of it. and the criticism now made was cured by the judgment thereafter rendered.
      
        Second. The action to foreclose was commenced before May 1, 1877, and the provisions of chapter 511 of the Laws of 1853, as-amended by chapter 313 of the Laws of 1863, in relation to substituted service, were applicable (Laws of 1876, chap. 449, § 5, subd. 4). This statute provided for substituted service in two cases: (1) Where a defendant residing in the State, could not be found; (2) or, if "found, avoided or evaded service; and in my opinion was applicable to all defendants, including infants.. The title of the act, as well as the language used, seems to negative-any other-conclusion.- It was an “Act to facilitate the service of process in certain cases,” and. provided for service on “any defendant.” It is true infants were not in express terms mentioned.or referred to in the act, but the use of the words “any defendant” indicates, as clearly as language can, an intent to include them; and, to hold otherwise, is to. impute to a legislative body ignorance of the meaning of thé' word “any,” or else by judicial sanction give to such word a meaning not usually accorded to it. If I am correct in the conclusion that this statute applied to service upon infants, then the infants .in question were, under the facts presented, clearly brought Within the provisions permitting substituted service upon them on the ground that they could not be found, “ reached,” “got at;” and, thereforo, “the order for substituted service was not irregularly or improvidently granted, notwithstanding it appears on its face to have been made on the ground of an avoidance or evasion of service and not, upon the ground above considered. Every intendment is in favor of the jurisdiction, and ‘ jurisdiction does not depend upon the intention of the officer or tribunal undertaking to act. The question is, does the law authorize the act ? ’ ” (Carter v. Youngs, 43 N. Y. Super. Ct. 169.) I am also of the opinion that the proofs presented jdstified the granting of the order upon the ground that these infants evaded or avoided service. In reaching this conclusion I am not uúmindful of the suggestion of the plaintiff that to avoid service implies the legal capacity to think and reason, and that the statute presupposes that a defendant knows that process has been issued for service upon him, and that, having this knowledge, he eludes the .officer. But the act of the mother must in law be held to be the act of the .infants., When the officer served the amended summons upon her she had the care, custody and legal control of her infant children, and in thus acting for them she refused to let the officer make service upon them. This principle of the law has heretofore been applied and acted on. Thiis, in Morrison v. The Erie Railway Co. (56 N. Y. 302), where a father took an infant twelve years of age under his arm and stepped from a car .while in motion, and the child was injured, the court held that the child was chargeable with contributory negligence and stated the rule as follows: “ The plaintiff, her father and her mother, while they were yet inside the car, knew that the train was moving. As she was - of tender years and immediately under their care and control their acts and conduct were her acts and conduct, and she.is to be judged thereby; ” also in case of residence of infants. (Brown v. Lynch, 2 Bradf. 214.) When the plaintiff sought to serve the summons upon these infants, and the mother would not permit them to be seen so that service could be made, her act must be imputed to th.em, and thus they were brought within the provisions of the statute avoiding or evading service, and the order for substituted service was good on that ground.
      
        Third. The third and fourth alleged defects appear to be entirely without merit. The order followed the statute almost literally. The statute did not require service upon the parent, guardian or other person with whom the infants resided. But the affidavit upon which the order was made showed that the amended sum.-mons was, in fact, served on the mother of the infants on the 26th of February, 1877, and that such service was made on her “as being the mother of and person with whom ” the said infant defendants, naming them, resided. It will be borne in mind that the mother was personally served as a defendant on the tenth of January preceding, and that, after the substituted service upon the infants, she petitioned for the appointment of a guardian ad litem of the infant defendants, and that upon her petition a guardian was appointed.
      
        Fourth. The statute did not require that the affidavit of service should be annexed to the papers served. It is, therefore, immaterial whether the affidavit of service made by Sherwood was attached to the amended summons or not. When proof was presented to the court from which it could find as a fact that the summons and complaint had actually been served as directed by the order, that was all that was required. (Collins v. Ryan, 32 Barb. 647.) The beginning of the affidavit to the effect that the deponent served the'annexed summons and complaint can be disregarded, and then the question is presented, What did the affiant do ? The answer is contained in the affidavit filed, namely, that he served the amended summons and complaint on the infant defendants by affixing six copies of said amended summons and complaint to the door, and by mailing them through the post office as required by the order and the statute permitting such service. This made the proof of service complete, and it must be held to have been the service of the summons and complaint last amended, since the. affiant stated that the infants were defendants, and they were not named as' defendants in any other amended summons and con^ plaint. (Litchfield v. Burwell, 5 How. Pr. 342.) But if this affidavit be considered defective and subject to the criticism, made by the plaintiff of service on the infants, then the proof was. supplied by the verified petitions asking for the appointment of a guardian ad litem, which recited that “ this action has'been commenced against said infants as defendants by the plaintiff above named.” The recent case of Murphy v. Shea (143 N. Y. 78) is directly in point. In that case there was no affidavit of service on the infants, but the father, in an application for the appointment of a guardian ad litem, swore that the summons and complaint had .been served upon them. The court said : “The affidavit of the person who actually served the summons is unnecessary so long as there is other competent proof of such service. * * * At any rate there was enough stated to call upon the court for a decision upon the fact of service, and the court must have found such fact as the basis for its order for the appointment of a guardian.” Then, too, the recital of service in the j udgment is prima facie evidence of the fact of service, and of itself sufficient, when the judgment is attacked collaterally, to show that the court acquired jurisdiction. There is always a presumption in favor of the regularity of judicial proceedings, and this presumption is strengthened by lapse of time and should not be lightly disregarded when attacked collaterally on a technical point of practice. (Lowerre v. Owens, 14 App. Div. 216.) And the burden of proving want of jurisdiction is upon the party questioning it, and must be established in a clear and satisfactory manner to .nullify a judgment. (Potter v. Merchants Bank of Albany, 28 N. Y. 641; Ferguson v. Crawford, 86 id. 609 ; Steinam v. Strauss, 44 N. Y. St. Repr. 380; S. C. affd. without opinion, 137 N. Y. 561; Berkowitz v. Brown, 3 Misc. Rep. 1.) “The presumption,” says JudgeBisciioef in the case last cited, “is that the court would not have rendered the judgment or made the decree except upon due proof of the service of the summons in the action- in the manner prescribed by law, and this presumption is, in the instance of the judgment under examination, materially strengthened by the fact that it recites that it was made upon ‘reading and filing due proof of the service of the summons and complaint.’ * * * The fact, therefore, that the proofs of service which are annexed to the judgment roll are deficient in that they do not show sufficient service does not impeach the jurisdiction of -the court to render the judgment which was entered and in terms precluded the infant defendants of their respective interests in the mortgaged premises. To destroy the presumption of jurisdiction, the want of sufficient service of the summons must either affirmatively appear from the record of the foreclosure action, or the fact of non-service "x" * * should have been established in this action.” In the case of Steinam v. Strauss (supra) there was no affidavit of service on any of the defendants, and the court held that the recital of service in the judgment was prima facie evidence of the fact of service. It follows that the defendant’s title, derived through the foreclosure proceedings, is valid.
      The other objections made were without merit. As to the unpaid taxes and. assessments, no evidence whatever was offered on the subject, and plaintiffs-attorney stated upon the trial that it was waived. It was also conceded that at the time fixed for completing the contract the defendant produced a satisfaction of the mortgage and was then ready to deliver it to the plaintiff. That a mortgage under such circumstances is not a legal objection, is too well settled to need discussion. That there was a tenant in possession is disproved by the evidence-in the case. It has been suggested that the answer admits that one Anna Speir was in possession, but the same clause of the answer also alleges that the defendant was in possession, and was then able and offered to give the plaintiff possession. As a pleading, I think the answer sufficient, without amendment, to admit the evidence that was admitted upon the trial, to the effect that there was no tenant in possession. At most, the allegations of the answer were indefinite in this-respect, and if the plaintiff had desired, that it be made more definite, he should have made a motion for that purpose, and, not haying done so, he cannot now be heard to complain. Besides, the plaintiff was not surprised on the trial by the admission of this evidence. His son, who. had the principal charge of the transaction, testified that he had learned, after an investigation instituted for this purpose, that there was no tenant in possession. Hot only this, but the plaintiff did not attempt to contradict the testimony of the witnesses Barney and Hay when they stated that at the time fixed for closing the contract there was no tenant in possession. It is true there was a slight encroachment, but the objection to that was not seriously made or considered; and, if it had been,- it was of such a. trifling character that it could not be considered a defect in the title. The maxim cle minimis non curat lex applies. (Katz v. Kaiser, 10 App. Div. 137.) The uncontradicted evidence shows that the encroachment did not in any way diminish the value of the lot. The defendant was willing to convey, and the contract would have been completed if the plaintiff had been willing to have accepted the title, which he was not, basing his objections upon the defects arising out of the foreclosure proceedings.
      Having reached the conclusion that the title is good and that the other objections are without merit, the remaining inquiryis presented: Should specific performance now be decreed ? I think not. The evidence shows that the property was contracted to be sold for several thousand dollars less than its real value, for ' the reason that the seller was receiving cash. The plaintiff then rejected thé title, and he elected to stand upon his legal rights, and he cannot now be heard to say: “It is true I refused to take the title because I thought it was bad, but the court having reached the conclusion that it is good, I will now take it.” To permit such practice would, in the present case, and in many cases, be unjust and inequitable, and lead to much litigation. This view is supported by Haffey v. Lynch (68 Hun, 507), where the court said: “These views are entirely consistent with the present position of the plaintiff. At the time of the bringing of this action he was not willing to accept the title, but claimed that it was defective, -and he speculated upon the defect. Having lost in such speculation, he cannot .now be allowed to claim the advantages of the favorable change in conditions which have occurred since the commencement of the action. Actions for specific-performance cannot be resorted to for the purpose of obtaining extensions of time for the completion of contracts, and the plaintiff should be remitted to his action for damages.” (See, also, Dominick v. Michael, 4 Sandf. 425.) The defendant does not ask that a specific performance be decreed, and it will be observed that upon the trial the plaintiff made no offer to accept a deed, but then insisted upon bis right to rescind the-contract, and, in support of that contention, sought to establish the damages sustained by him for a breach of it. The contract of sale was rescinded by the plaintiff, and the complaint should be dismissed; with ■costs, but without prej udice to the fights of the plaintiff in any other form of action.
     