
    In the Matter of the Application of Mary E. Field.
    
      (Court of Appeals,
    
    
      Filed February 12, 1892.)
    
    1. Vendor and purchaser—Title—Sale made under Laws 1890, chap. 276.
    The act of 1890, chap. 276, authorizing the sale of certain real property in the city of New York, with the assent of the adult owners, and the extinguishment thereby of the contingent interests of all persons not m being at the time of sales provides a full and complete protection to a purchaser, as the proceeds of the sale are directed by the act to be paid into court and retain the character of real estate.
    2. Service—Publication—Code Civ. Pro., § 440.
    Under § 440 of the Code, providing for service of an' order upon nonresidents, both modes of service are not directed in every event, but while that is always proper, the order may direct the service by due publication m' personal delivery without the state; and. an order directing either mode alone, followed by due service in that manner, will be equally good with one which directs both with an option to choose either.
    (Overruling Bitten v. Griffith, 16 Hun, 454.)
    Appeal from judgment of the supreme court, general term, first department, affirming order directing a purchaser to complete a purchase of real estate.
    
      Joseph B. Reilly, for app’lts; Henry H. Man, for resp’ts.
   Finch, J.

The title tendered by the vendors was rejected by the vendee for two alleged defects : one founded upon the special act of 1890 which authorized the sale of the interests involved, and the other upon the provisions of the Code regulating the service of a summons upon non-residents.

The premises in question were owned in his lifetime by John M. Bradhurst, who conveyed the same to his daughter', Mary Elizabeth Field, and her husband, Hickson W. Field, Jr., for their natural lives and. the life of the survivor, with remainder in fee upon the death of such survivor to their lawful issue then living, and to the children of any of such issue as shall have died, with a reversion to the right heirs of the grantor in case of his death and to himself if living. The grantor is dead and also Hickson W. Field, Jr., one of the grantees, leaving the life estate running in the sole ownership of the latter’s widow. There is but one surviving child of the grantees, who is Elizabeth, wife of Prince Brancaccio, and who have three children now surviving, all of whom are under the age of twenty-one years. If their mother should die before the termination of Mrs. Field’s life estate such of them as should be living at the latter date, together with any other children of the princess who may be born before that period, would be entitled in remainder, so that infants and persons not in being have possible and contingent interests essential to be cut off in the transfer of a perfect title. The act of 1890, chap. 276, specially authorized the sale of the property with the assent of the adult owners and the extinguishment thereby of the contingent interests referred to. The purchaser does not deny the power of the legislature to authorize an effective sale, but insists that it cannot do so without provision for the safety of persons not in esse, and that the order should have directed an investment of an adequate portion of the proceeds of the sale, as was suggested by one member of the general term.

We think the act itself provides a full and complete protection. The sale was required to be made at public auction so as to real- ' ize the full and fair market value of the property, and no doubt is suggested as to the sufficiency of the consideration ascertained by the sale. The proceeds, which thus take the place of the land, are still to be treated as land for the purpose of measuring all rights therein, and their preservation is secured by requiring them to be paid into court and invested under its direction and directing it to provide that such proceeds shall not be withdrawn from its custody, so far as the principal is concerned, until all life estates therein are determined, and then only upon the order of the court upon notice to all persons entitled to the capital or income thereof. I see no necessity for the suggested modification of the order. At the termination of Mrs. Field’s life estate, when the rights of all parties will become fixed and cease to be contingent, the fund representing the land and to be treated as land, will remain in the hands of the court, and to it will attach every possible right to its full extent and measure. Assuming, as we must, that the sale at public auction under the care and direction of the court has produced the full value of the land, the proceeds are preserved under the control of the court until final distribution to the parties who may then be entitled, and in exact accordance with their legal rights.

But it is further objected that the order directing service of the order to show cause upon the non-resident defendants by a proper personal service without the state was void and ineffectual because it did not also direct the due publication as provided by § 440 of the Code, as that section has been hitherto interpreted. It was held in Ritten v. Griffith, 16 Hun, 454, that such an order was nugatory unless its direction embodied the two alternative modes of service specified, although, by the terms of the section itself, either may be adopted at the option of the party serving, and the "actual publication is needless where the proper personal .service is made. So far as this construction has been followed the submission has been under protest and accompanied by more or less of evident discontent. Weil v. Martin, 24 Hun, 645; O'Neil v. Bender, 30 Hun, 204; Berford v. N. Y. Iron Mine, 55 N. Y. Supr., 516; 18 St. Rep., 400.

We do not agree with the construction which has been thus as.serted. It may be granted that it is a possible and perhaps even -a grammatical reading of the section, but the natural and sensible ■construction is not that the order' must direct both modes of service in every event, but while that is always proper, the order may direct the service by due publication, or may direct the service by personal delivery without the state in the manner prescribed ; and an order directing either mode alone, followed by due service in that manner, will be equally good with one which •directs both with an option to choose either. We deem it proper to overrule Ritten v. Griffith, and relieve the courts which have doubted its construction from the embarrassment of its authority. There is no reason why the choice conceded to exist should not be exercised at the granting of the order, and appear by its terms, as well as be made thereafter under an order in the alternative. It follows that the order in the present case which directed only the proper personal service without the state was regular, and not void.

The assent of the adult parties to the sale is sufficiently shown by their appearance by attorney, their acquiescence in the order ■of sale, and their failure at any point of the proceedings to make •objection or resistance.

The order should be affirmed, with costs.

All concur. 
      
       Affirming 42 St. Rep., 815.
     