
    Charles Wichman, Resp’t, v. Martin Aschpurwis et al., Matter of the Petition of Patrick Roche, et al., Appl’ts.
    
      (New York Superior Court, General Term,
    
    
      Filed January 3, 1888.)
    
    1. Affidavits—In certain instances may be on information and belief.
    Objection was made by the purchaser on a sale under judgment of foreclosure, against the title offered, because the mortgagor bad not been duly served with the summons by publication. The affidavits on which the order of publication was made, stated something on information and belief. Held, that they were within the permission that the law gives to make such allegations, under some conditions.
    3. Service of summons—By publication—Sufficiency of affidavits to sustain order for.
    The defendant mortgagor was shown to be a man with a wife and owning real estate in New York State. It was further shown that he had been indicted for the alleged crime of rape, that the plaintiff had become his bondsman to appear for trial, that he did not appear, and the police searched for him vainly, that he had not communicated with his bondsman, nor demanded payment of the rents due him. And that he could not be found at bis house. It was also shown that diligence had been used in trying to serve the summons. Held, that the question, was presented to the judge whether the mortgagor was in this state, temporarily concealed, or had departed from the state to remain out of it permanently, and that the determination arrived at, that he was a non resident, was conclusive upon a proceeding instituted by a purchaser on a sale under foreclosure to be released from his purchase.
    8. Foreclosure of mortgage—Sale under judgment of foreclosure— TERMS OF SALE—CONSTRUCTION OF.
    The terms of sale provided that all taxes, assessments and other incumbrances, which at the time of the sale were liens or incumbrances upon said premises would be allowed out of the purchase money, etc. Held, that the subject of the foreclosure being the mortgagor’s rightin a leasehold incumbrance at a certain date to which the leasehold was subject at that date was not within the clause mentioned in the terms of sale and that the terms of sale did not call for their payment.
    4. Same—What payable out of purchase money.
    
      Held, that interest of such incumbrances was accessorial to the principal and followed it in all its conditions.
    5. Same—What payable out of purchase money.
    
      Held, that unpaid water rents accruing subsequent to that date were liens which by the terms of sale were payable out of the purchase money.
    Appeal by the purchasers at a sale, under a judgment in. foreclosure, from an order denying their petition to be re■lieved from their purchase, and from an order compelling them to complete their purchase.
    ■ The following is the special term opinion, delivered upon the decision of the motion, from the orders entered on which the appeals are taken:
    O’Gorman, J.—Patrick Roche and Timothy Roche were purchasers at a foreclosure sale of the interest of the defendant Aschpurwis in a lease of certain real estate in this city.
    They have refused to take the deed offered to them by the referee, and petition to be relieved on the grounds:
    
      First. That the court had not acquired jurisdiction of Aschpurwis, the mortgagor and defendant in this foreclosure suit.
    
      Second. That the premises which they claim to have purchased, were not free from incumbrance.
    ■ The plaintiff also moves that the purchasers be compelled to complete their purchase.
    The first objection made on behalf of the purchasers is not sustained. The facts disclosed in the complaint, and in the affidavit on which the order for service by publication, was granted, were sufficient to justify the order under sections 438 and 439, Code Civil Procedure. There was evidence that after diligent search, the plaintiff was unable to ascertain whether or no the defendant Aschpurwis was •a resident of the state. The propriety of making the order of service by publication was a question for the judicial discretion of the court, and the decision will not be set asido in a collateral proceeding. Denman v. McGuire, 101 N. Y., 161.
    As to the second objection, the contention has arisen by reason of the use, by inadvertence or mistake of the auctioneer, of a printed form of “terms of sale,” which was not applicable to the subject of this sale, or to the circumstances of the case.
    In the fourth section of the printed form of “terms of sale,” used by the auctioneers and signed by the referee, the following words occur: “All taxes, assessments and other incumbrances which, at the time of the sale, are liens or incumbrances upon said premises, will be allowed by the referee out of the purchase-money upon proof of such liens, and deplicate receipts for the payment thereof.” Immediately after the reading of these terms of sale, the auctioneer, at the request of the referee, announced to the persons-there'present at the auction, including the said purchasers, that the sale was merely “ a right, title and interest sale;”' that the sale was made subject to a mortgage of $4,500, and about six months’ accrued interest, and to all other liens •and incumbrances; and that the bid should be over and above all liens and incumbrances; and that the ground rent-was $300 per year.
    
      There is evidence on this motion that the said purchasers heard this statement of the auctioneer, and understood its import and effect at the time they bid at the auction and became the purchasers.
    The purchasers contend that they are bound only by the terms set forth in the said printed form of “terms of sale,” and that the oral statements of the auctioneer do not, in any way, affect their rights or obligations.
    In the said “terms of sale,” reference was made to the “annexed advertisement of sale,” from which advertisement it appeared that the property sold was only the “ right, title and interest,” which Martin Aschpurwis had on December 28, 1886, in the premises, and that the sale was made by a referee in pursuance of a judgment of foreclosure in this suit. The statement of the auctioneer was consistent with this “advertisement of sale,” and gave only a more particular despription of the nature of the property sold and its necessary incidents; and in so far as it was inconsistent with the section 4 of the “terms of sale,” above set forth, it was a revocation of that section, not objected to, and tacitly assented to by all bidders present, including the purchasers. The mistake made in reading that section was manifest and was cured by the auctioneer’s statement. It did not mislead any one. The memorandum of sale signed by the referee, and by the purchasers, referred to the said advertisement of sale and must be regarded as subject to the declaration of the auctioneer contemporaneous with the sale, and the revocation of the said clause in the printed “terms of sale.”
    That such was the intention of all the parties to the contract of sale is apparent from the facts as they appear on this motion.
    The purchasers were not entitled to the rents of the premises between the time of their purchase and delivery of the deed to them. Cheney v. Woodruff, 45 N. Y., 98-101.
    Other objections made by the purchasers are not urged in their brief, and are without merit.
    The application on behalf of the purchasers to be relieved, is denied, with ten dollars costs—the purchasers to have ten days from date of entry of order to complete their purchause.
    The motion in behalf of the plaintiff, that the purchasers be compelled to complete the sale, is granted, with ten dollars costs; order to be settled on notice.
    
      Michael J. Mulqueen, for app’lts; Bailey & Sullivan, for resp’t.
   Sedgwick, Ch. J.

The decision is confined to the objections of the purchasers, made upon the argument of the appeals.

The first objection was, that the defendant, the mortgagor, had not been duly served with the summons by publication, etc. The validity of this depended upon the tenor of the affidavits upon which publication was ordered. If the affidavits stated facts that tended to show that the mortgagor had become and was a non-resident, the judge had jurisdiction to grant, or refuse to make the order, and his determination that the defendant was a non resident is conclusive in this proceeding. There was such a jurisdiction. The defendant was shown to be a man with a wife and having real estate here. He had been indicted for the alleged crime of rape. The plaintiff here became his bondsman to appear for trial. He did not appear. The police had searched for him vainly. He had not communicated with his bondsman. He had not demanded payment of rents due him. He could not be found at his house. There were other facts of a like significance. The question was therefore presented to the judge whether he was in this state temporarily concealed, or had he made himself as safe from arrest as the case showed he desired to make himself, by departing from the state and remaining out of it permanently. On this latter point the judge had the right to consider that there was no probability that the things which formed the motive of the defendant’s flight would change.

The affidavits also showed diligence in trying to serve the summons.

The affidavits stated some things upon information and belief. In this respect they were within the permission that the law gives to make allegations upon information and belief, under some conditions.

The other objection argued was that the referee refused to give an unincumbered title, as stipulated for by the terms of sale, in that said premises were incumbered as follows: By a mortgage on said property, made by Martin Aschpurwis to Elias Neumann, for $4,500, dated May 13, 1885, and recorded in liber 1636 of mortgages, page 336; by all interest due on said mortgage from the 28th day of December, 1886; by a judgment obtained by Gibben Spicer against Martin Aschpurwis for the sum of $193.45, with interest from the 11th day of September, 1884, a transcript of said judgment having been filed in the office of the clerk of the city and county of New York, on the said 11th day of September, 1884; and by the sum of twenty-three dollars for unpaid Croton water rent for the year 1887, and twelve dollars and sixty-five cents unpaid Croton water rents for the year 1884.

The terms of sale were in writing and were prefixed to the memorandum of sale, signed by the purchasers, and that memorandum expressly referred to them.

If the obligations of the purchasers depended upon the declarations qf the auctioneer, at the sale, I should think there was little doubt that they should complete the purchase. It is, however, more satisfactory to hold that the testimony of what the contract was, is to be found in the writing alone.

The terms of sale had this clause, “all taxes, assessments and other incumbrances, which at the time of sale are liens or incumbrances upon said premises, will be allowed out of the purchase-money, provided the purchaser,” etc. What were the “said premises?” The terms of sale begin by the sentence, “ The premises described in the next advertisement will be sold,” etc. The advertisement annexed to the terms and to the memorandum signed by the purchasers, was that pursuant to the judgment in foreclosure,” etc., the premises mentioned in said judgment and thereby directed to be sold, which are described as follows: All the right, title and interest which Martin Aschpurwis had on the 28th of December, 1886, of, in and to a certain indenture of lease, etc. This correctly referred to the judgment. In the printed case, by a mistake, the date is given as 28th December, 1866.

Take it altogether, the premises, in the terms of sale, mean the right, title and interest of the mortgagor as it existed on the day named. So far as title and right is concerned, the purchasers would, by the referee’s deed, have acquired wdiat they agreed to buy. They cannot demand a perfect or unincumbered title unless the terms of sale call for that. Mott v. Mott, 68 N. Y., 250. The terms of sale do not call for a payment of incumbrances on the lease, and which existed before the 28th December, 1886, for they were incumbrances on the interest as it had existed before that date, and had in a true sense lessened his interest to what it became and was on that day, namely, something in the nature of, if not exactly, an equity of redemption.

Interest on the incumbrance may have accrued after December 28, 1886, but that was not, of itself, an incumbrance and cannot be separated from it. It was in its legal nature accessorial to the principal, and follows the latter in all its conditions.

I therefore think that the terms did not call for a payment out of purchase money of liens created before December 28, 1886, and that they were not incumbrances upon what was sold. On the other hand, 1 think the unpaid Croton water rents for 1887 formed under the terms of sale a lien upon the interest described and that the referee should pay this out of the purchase money. Perhaps this cannot be done under the terms of the judgment. If it cannot, the plaintiff may pay, or allow the referee to pay, as at least so much of the purchase money when paid will belong to the plaintiff.

The orders appealed from should be affirmed, with ten dollars costs in each instance after being modified as to the Croton water rents. This modification does not call for a refusal of- costs to the respondent, for it seems that no specific attention was asked to that particular, the purchaser’s claim being general as to all leins.

Freedman and Ingraham, JJ., concur.  