
    Edward Brenen, Plaintiff, v. James E. North, Defendant.
    
      Tendor and purchaser—a title not prejudiced, where a complaint is filed after the lis pendens, if no rights intervene before judgment and sale—a judgment granting relief broader than the prayer of the complaint is irregular, not void—sufficiency cf affidavits for an order to publish the summons—omission of certain defendants’ names from the summons as published, not fatal — costs may be waived where a controversy is submitted without action.
    
    The filing of a complaint in an action of foreclosure, two weeks after the filing of the notice of the pendency of the action, does not affect the title acquired by a purchaser at the sale where no right was acquired by any person as against the property, by incumbrance or lien, between the commencement of the action and the decree and the sale under it.
    Where the prayer of the complaint in an action of foreclosure asks simply that the mortgagor and all persons claiming under him subsequent to the commencement of the action be foreclosed of all claim and right to the premises, ■a judgment of foreclosure and sale in which the relief granted is in the usual form and broader than the prayer of the complaint, is not void, it is merely irregular, and can be amended.
    Where an affidavit, upon which an order for the publication of the summons is based, is made by the attorney for the plaintiff, who deposes that the defendant in question could not after due diligence be found within the State, and that the attorney had been informed by people who knew the defendant that he had left New York several years before, and had never returned to their knowledge, and there is added to this the affidavit of the sister of the defendant, that he had left New York seven years previously; that she had never heard from him, and that, though she had made diligent inquiry as to his whereabouts, she was unable to get any information concerning him, and that, therefore, she believed he was not a resident of this State, a case is made sufficient to authorize the order of publication.
    The summons, as published pursuant to the order of publication, contained the name of the defendant on whom service was sought to be made by publication, and that of one other defendant, but did not contain the name of the . remaining defendants in the action.
    
      Meld, that there had been a substantial compliance with the requirements of the law;
    That the object of the publication of the summons was to give notice to the defendant sought to be served by publication that the action was pending against him, and that as in this case he was put upon inquiry by the summons -as published, nothing more than that was necessary.
    Where a controversy is submitted upon an agreed state of facts the parties may stipulate that costs shall be waived.
    ' Van Brunt, P. J., dissented upon the question of costs, holding that where they are discretionary the discretion of the court cannot be taken away by stipulation.
    
      Submission of .a controversy upon an agreed statement -of facts-pursuant to section 1279 of the Code of Civil Procedure.
    The submission provided among other things as follows: “ The costs of this action, whatever may be the determination, are hereby waived by each party* as against the other.
    
      Abram I. Elkus and A. S. Gilbert, for the plaintiff.
    
      Charles L. Greenhall, for the defendant.
   Patterson, J.:

The controversy between the parties on this record is submitted upon an agreed state of facts pursuant to the provisions of section 1279 of the Code of Civil Procedure. It arises out of an agreement. in writing by which the plaintiff contracted to sell and convey to the defendant certain premises in the city of New York. The-defendant declined to receive a conveyance upon the alleged ground that the plaintiff was ' unable to convey -a marketable title, and the objections he urges will be considered in the order in which he has presented them.

The premises referred to-in the contract belonged, in 1857, to one Luke Clark, who, on the first of May of that year, executed a mortgage upon, the same- to Harriet Thompson, which was subsequently transferred to Edward Brenen. In 1886 Clark and his wife conveyed the premises to Patrick Brodie, who, in the same year, conveyed them to Bridget Brodie. Bridget Brodie died intestate, leaving, as her heirs at law, a son, Thomas (of whom nothing seemed to be known in 1886 whether he ivas alive or dead, or whether he left a widow or children), a daughter, Ellen Brodie (since deceased), a daughter, Ann Brodie, and grandsons, Patrick and Timothy MacDonald, children of Mary Brodie MacDonald, a deceased daughter. In October, 1885, Brenen, the holder of the mortgage made in 1857 by Luke Clark, began an'action for the foreclosure and sale of the premises in question, making parties thereto all who were interested in the property, including those who were presumptively heirs at law of Thomas Brodie. Judgment of foreclosure and sale was rendered in that action in February, 1886. The notice of lis pendens therein was filed in the office of the clerk of the city and county of New York on the 28th day of October,' 1885. The complaint" was not filed until the 11th day of November, 1885, and this circumstance gives rise to the first objection taken by the defendant to the title. It is claimed that the requirements of section 1670 of the Code of Civil Procedure are imperative, and that in order to make a foreclosure judgment effectual the notice of Us pendens must be filed either at the-same time that the-complaint is filed or at some subsequent time before final judgment, and that the premature filing of the notice is a fatal defect in the proceeding. It does not appear that any right was acquired by anybody as against this property by incumbrance or lien intermediate the beginning of the suit and the decree and the sale thereunder. By the decree and the deed given Under the sale, the title of the owner of the equity of redemption and the claims of all other defendants were effectually divested and cut off, and there is no practical question raised respecting the title acquired by the purchaser at the sale. Had there been intervening incumbrances or liens a different question would be raised, as was the case in Weeks v. Tomes (16 Hun, 349). We think, therefore, that this objection is untenable.

It further appears by the submitted statement that in the action of Brenen the prayer of the complaint was, that the defendant Luke Clark, and all persons claiming under him subsequent to the commencement of the action, be barred and foreclosed of all right, claim, lien and equity of redemption of said premises. At the time the suit was begun Clark had no interest or estate in the premises, for they had been conveyed by him to the Brodies. The complaint did not pray for any relief barring any other of the defendants than Luke Clark and those claiming under him. It is now urged that, under the provisions of section 1207 of the Code of Civil Procedure, the judgment could be no broader than the demand for relief, as the other defendants did not answer in the suit. This defect in the complaint does not render the judgment of foreclosure and sale void. The precise question was considered in the case of Naughton v. Vion (91 Hun, 360), where it was held that the judgment in a foreclosure action where the relief was broader than the prayer concerning the barring and foreclosing of the rights and claims of parties defendant was not void, but was merely irregular and could be amended. That authority disposes of that objection.

The summons in the action of Brenén against Clark was Sought to be served on Thomas Brodie, whose whereabouts, if he were" alive, were Unknown, by publication, and it is claimed that the -affidavits upon which the order of publication was granted were insufficient to give jurisdiction. - Those affidavits were made by the attorney for the plaintiff in that foreclosure suit, and by Ellen Brodie, who was a sister of Thomas Brodie. The attorney swears that Thomas Brodie could not, after due diligence, be found in the State* and that the deponent had inquired from people who knew Thomas Brodie, and he ivas informed that he left Few York seven years ago and never returned to their knowledge. Ellen- Brodie swore that Thomas Brodie had left Few York seven years before the time'she made her affidavit; that she had never heard from him; that diligent inquiries had been made as to his whereabouts, and she was unable' to get any information concerning him, and that,- therer fore, she believed he Avas not a resident of this State. The affidavits were sufficient to authorize, the order of publication. There certainly was some . evidence before the court that Thomas Brodie could not be served within the jurisdiction. The statement of due diligence in the efforts to serve him, as: was remarked in Kennedy v. The N. Y. Life Ins. & Trust Company (101 N. Y. 487), is not necessarily an allegation of a conclusion of law, especially when considered in connection with the affidavit of the. sister of Thomas Brodie, that her brother hadleft F ew York seven years, previously, and she had never heard from him, and that she also had made diligent inquiry as to his whereabouts. The affidavit of the sister contains the statement that she was satisfied that her brother did not reside within the city and county of Few York, and, as. stated before, the reasons, iov. this belief were given. In Carleton v. Carleton (23 Hun, 251). the affidavit for the piiblication of the summons stated that the defendant had not resided in the State of Few York since March, 1811, and there, was a further allegation that the deponent is -informed and- believes that the. defendant is a resident of San Francisco. That was held sufficient to. give, the court jurisdiction,, and we think in this case, where the service is attacked collaterally, there was enough contained in the affidavit of the sister, showing that the man had left Few- York seven years, previously and had never been heard from thereafter by members of his own family, to justify the judge who made the order in determining that the defendant Thomas Brodie was not a resident of the State of New York and could not be found therein.

It is further made to appear by the submitted statement that, when the summons was published pursuant to the order of publication against Thomas Brodie, the name of the first defendant Clark and the name of Thomas Brodie alone appeared as defendants, and, as there were other defendants, it is claimed that there was no proper publication. But there was a substantial compliance with the requirement of the law. The object of the summons was to give notice to the defendant Thomas Brodie that the action was pending against him ; all that was necessary to give that notice was done; the name of the particular defendant summoned was given ; the place at which Ms answer or notice of appearance must be served was mentioned in the publication. Whatever was requisite to put him upon inquiry was contained in the summons as printed, and nothing more was necessary than that. A literal and exact copy was not required if the whole of the summons specifically directed to him as a defendant, and Ms name appearing therein as a defendant, was published, as appears to have been the case here. It is unnecessary to consider the other questions raised on this submission. The effect of the strict foreclosure action becomes unimportant in view of what has been previously said upon the other objections.

We are of opinion that the title offered by the plaintiff was marketable and free from such doubt as would justify its rejection, and that the defendant should be required to accept the deed tendered by the plaintiff conveying the premises under the contract, without costs, as they have been waived by the stipulation.

Rumsey, Williams and Ingraham, JJ., concurred; Van Brunt, P. J., dissented on the question of costs.

Van Brunt, P. J. (dissenting):

I dissent upon the question of costs. Costs are in the discretion of the court, and this discretion cannot be taken away by stipulation of the parties.

Costs should be allowed to the plaintiff.

Judgment ordered for plaintiff, without costs»  