
    Mishkind-Feinberg Realty Company, Plaintiff, v. Louis Sidorsky, Defendant.
    First Department,
    March 9, 1906.
    N.eal propérty — action for specific performance of contract to purchase —when vendor’s title obtained through foreclosure is marketable though service by publication was irregular—when irregularity in such, service not vital—order of publication amended nunc pro tunc.
    The title of a purchaser of real estate on foreclosure is marketable, although at the time the summons in the action of foreclosure was served/by publication upon one of the defendants it had been ordered that a supplemental summons issue to bring in certain tenants, which supplemental summons was not served , on said defendant, who! Was served only with the Original summons, which named her as defendant. Such defendant having been summoned to answer on her own account, it is immaterial that the summons did not contain the names ■ of tenants made parties only to foreclose their rights as such.
    Neither.is the title unmarketable because the order of publication required “notice of object of action” to be served instead of the “complaint,” as required by section 440 of the Code of Civil' Procedure,, if in fact the. complaint was served together with such notice of object of action and the order of publication thereafter was corrected and filed nuna pro Pane. •
    
    While an order cannot be made nune pro "túne to supply a jurisdictional defect by requiring to be done something which has hot been done, such order may be so corrected when the thing has in fact been'done.
    Ingraham, J., dissented, with opinion.
    Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure..
    
      
      Arnstein & Levy [Emil Goldmark of counsel], for the plaintiff.
    
      J. A. Seidman, for the defendant.
   Clarke, J.:

This is a submission ■ of a controversy upon an agreed statement of facts, pursuant to the provisions of sections 1279-1281 of the Code of Civil Procedure. The parties entered into a contract in writing and under seal, under which the defendant agreed to sell and the plaintiff agreed to buy a certain piece of land with - the buildings thereon situated in the city of Hew York and known as 217 East One Hundred and Second street. The defendant agreed to deliver a proper deed containing the usual full covenants and warranty for the conveying and assuring to the party of the second part, or the assigns of the party of the second part, the fee simple of the said premises free from all incumbrance except as herein stated.” The plaintiff raised certain objections to defendant’s title, and the sole question here is: Is the title marketable ?;

The defendant acquired title through mesne conveyance.from one Donald, who was. the purchaser upon a foreclosure sale. Oñ the 29tli of June, 1897, one Pollock, the then owner of the fee, executed and delivered his bond and mortgage to Peter Donald for the payment of $14,000 on the 29th day of June, 1902, with interest at five per cent, payable semi-annually. Said mortgage was duly recorded. Thereafter said Pollock conveyed said premises to one Rickerson, and on May 24, 1899, Rickerson conveyed to Herman Rosenblum, who became the owner subject to said mortgage. On July 3,1899, said Rosenblum executed. a mortgage to Sigmund Cohn for $500. On October 31, 1899, Herman Rosenblum executed a mortgage to Simon Rosenblum for $3,000. This mortgage was assigned to Mollie Weinberg, and on Hovember 2, 1900, Mollie Weinberg assigned said mortgage to Mary Rabinovitch, the assignment, being recorded Hovember 7,-1900. On Hovember 14,1900, Peter Donald commenced an action to foreclose the first mortgage for $14,000 for non-payment of interest. The- owner of the equity, Herman Rosenblum, and his wife, Sigmund Cohn, the owner of the second mortgage for $500, and Mary Rabinovitch, the assignee of record of the third mortgage, as well as other parties, were made parties defendant. On December 4,-1900, an order was made and entered directing that the summons and complaint be amended- by striking out two unnecessary defendants and by adding twenty-eight others, "all of whom were tenants of the premises sought to be foreclosed, and accordingly a supplemental and amended summons and complaint were on that day issued. The said supplemental and amended .summons named all .the old defendants, except those two stricken out, and all the new defendants, but was directed to the new defendants only, Thereafter, and on January 29, 1901, an order was made directing that the. summons be - served upon the defendant Mary Rabinovitch by publication- The affidavits upon which the order was made sufficiently showed the nón-residence of said defendant, and that her then address was No-. 12 Fair street, Paterson, R. J. ' The order provided “ that service of' th'e' summons in the above-entitled action upon the said, defendant Mary Rabinovitch be made by publication thereof-in two newspapers. * * * That on or before the day of tlie first publication as aforesaid plaintiff deposit in the general post office hi- the Borough of Manhattan, City, County and State of Rew York, a copy of the summons and notice of object of action hereto- annexed 'and of this order contained iñ a securely enclosed, postpaid wrapper 'directed • to the said Mary Rabinovitch at R0.-T2 Fair Street, Paterson, Rew Jersey.” There was deposited in the- post' office, directed as requited, on the 16th day of February, 1901, the summons as originally made and served on .the other defendants, that- is,- containing the name, of Mary Rabinovitch and others, but not including tlie twenty-eight. tenants as to whom the supplemental summons was-, directed to be issued. To this summons was attached a.notice - directed to the defendant Mary Rabinovitch-as follows: “ The' foregoing summons is served upon you by publication, pursuant to an order of the ¡Horn P. Henry Dugro, a Justice of the Supreme Court of the State of Rew York, dated the 29th day of January, 1901, and filed with the complaintdn the office of the clerk of the' Countyof Rew York, on the 5th- day of February, 1901, at the Court House in the Borough of Mam hattan, Rew York.” There was also unclosed and mailed notice of object of action, notice of order of publication, complaint,-affidavits and .order of publication, and order amending-order of publication.

Thereafter and on May 3, 1901, judgment of foreclosure and sale wás entered and a referee appointed to sell, who, on May 28, 1901, after due notice.of sale-, sold the premises to the plaintiff in said action, Peter Donald,, for $13^400, resulting in a judgment for deficiency for $3,061.52. .

The first objection raised was that at the time- of the order of. publication of the summons, as against Mary Rabinovitch, a supplemental and amended summons had been ordered to be issued containing the names of'the twenty-eight tenants of the premises; that the publication and depositing in the post office of the original summons was not the publication of the summons in the action. It seems sufficient to say that, so far as -she was concerned, she was named in the original summons, and, being summoned to defend the action on her own account, it does not seen! a matter of moment that- the names of the tenants of the property, made parties only for the purpose of foreclosing their rights, if any, under their tenancies, could in any way affect her.

The second objection was that the order of publication did.not conform to the provisions of section 440 of the Code of Civil Procedure. The part of that section material to this objection is as follows: “ It (the order) must also contain * * * a direction that on or before the. day of the first publication the plaintiff deposit in a specified post-office one or more sets of copies of the summons, complaint and order, each contained in a securely closed postpaid wrapper directed to the defendant at a place'specified in the order.” The order complied with that provision, with the- exception that, instead of the word “ complaint,” it said “ notice of object of action hereto annexed.” As matter of fact, the order was complied with byr mailing the notice'of object of action, and the purpose of the statute was complied with by mailing, also the complaint. Subsequent to this,’ objection'being taken, and on August 19, 1904, on notice to all the parties who had appeared-, an order was made and entered in said action amending said order “nuno fro tuno” as of the original date by striking out the words “ notice of object of action ” and inserting the- word “ comjplaint,” upon proof being presented that a complaint as well as notice of object of action was mailed to the defendant Mary Rabinovitch, and that the words “notice of object of action” were used-in said order by oversight and mistake, and were due to a 'clerical error, and that the word “complaint” was intended to be used.

PlaintifE claims that no jurisdiction was ever acquired over Mary Rabino’vitch because the order of publication' was jurisdieticnally defective. • Two recent cases in this court are cited by plaintifE. In Eleventh Ward Bank v. Powers (43 App. Div. 178) 'it appeared that the order did not specify the post office in which the copy of the summons, complaint and order were to be deposited. It did not direct that a copy of the order be mailed to the'defendant to be served, It did not direct that the order be served on or before the day of the first publication of the-summons. No copy of the order was mailed to the defendant, and this court- held on those facts- that there was Bo service. In Stuyvesant v. Weil (41 App. Div. 551) the objection- was that the defendant’s title was .defective; as the defendant claimed under a certain mortgage foreclosure wherein the owner of the equity of redemption “ was not named as a party defendant in either the- summons or the complaint,” and did not appear therein prior to the entry of judgment, and the court, therefore, had no jurisdiction of the person of said owner: It appeared that the name of the owner of the equity was Mary J. Stockton, and that in the foreclosure proceedings the summons and'complaint, named Emma J. Stockton, instead of Mary J. Stockton, and as so written -they were sérved on Mary J. Stockton, who did'not,, however, appear or answer- at any time before the judgment or sale. Subsequently án ex parte order was entered “ that the summons and complaint, and all other papers herein, be amended by striking out -the name ‘Emma J. Stockton’ where the same appears and inserting in lieu thereof the name ‘ Mary J. Stockton-’"as one of the defendants in this action.” No amended notice of pendency of action was filed, nor was any amended or supplemental summons issued or served. The court Said: “ The person served by the wrong name never appeared, and.Unless the.court- obtained jurisdiction it is difficult to determine upon . what principle it could amend and thereafter proceed to determine the rights of the parties. *' * ' *■ If here, intending to- sue'Mary J. Stockton, the summons had included the name of Emma J. Brown, it would not be claimed in a suit intended to. affect the former and in which she was actually served- with the summons directed to Emma j. Brown, that the court, without, her appearance, thereby acquired jurisdiction over ■ her. ‘Emma J, Stockton’may be nearer to the name of the person intended than Emma J. Brown/ yet if it is sufficient merely to have the right person served, regardless of having .them correctly designated in the summons, then seemingly there would be nearly as strong argument in favor of sustaining the jurisdiction of the court in one case as the other. Mary.J. Stockton would be no more required to attend a summons issued as against Emma J. Stockton than she would be if it were issued against Emma J. Brown. In bach instance it is directed to another person,” and held the title unmarketable. Upon appeal to the Court of Appeals (167 N. Y. 421) the judgment of-this court was unanimously reversed, the learned chief judge concluding his opinion with these words : “ We have not alluded to the decisions of the several Special and General' Terms which the Appellate Division felt called upon to follow. Their foundations were laid long before sections 721 and 723 of the Code came into existence as ffiarking features of a distinct legislative policy to stop the sacrifice of things of real substance upon the altar of mere technicality, and hence a discussion of them can serve no useful purpose.” _

- It seems to me that beyond question it would be the sacrifice of things of real substance upon the altar of mere technicality” to destroy a title to real éstate because an order, required the deposit in the post office of a notice of the object of the action, instead of a copy of the complaint, when as matter of fact not only the notice but the complaint as well and all of the other papers required by the Code to be served were so deposited. An order may not be made nunc pro tuno which will supply a jurisdictional defect by requiring something to be done which has not been done; but where the thing itself lias been done, when the object looked at by the Code in-requiring it, to be done lias actually been accomplished, the power to make the order express the fact does exist. The object in requiring that the order should contain a direction that the complaint should be deposited in the post office was that the complaint should be so deposited in order that the defendant might receive it and be placed in position to defend his rights upon the information so con-. veyed that. they were attacked. That, was done in the case at bar, and the proper and necessary papers were sent to the then- present address of the defendant, which address appeared upon the recorded assignment of. the. mortgage in question,, recorded only seven days. before the commencement of the suit, and stated by her attorney who attended to said assignment to be her then address.

Considering the facts in the case at' bar, and considering not only the provisions of-sections 721, 722 and 723 of the Code of Civil Procedure, but section 3345 as well, which expressly provides- that “ the rule of the -common law that a statute, in derogation of the common law is strictly construed does not apply to this a'ct,” and applying the doctrinó of the Court of Appeals as expressed in the Stuyvesant Case (supra),.1 am of the opinion'that the objections to-the title are not well taken, and "that judgment should go for the defendant upon this submission, with costs.

O’Brien, P. J., McLaughlin and Houghton, JJ., concurred; Ingraham, J., dissented.

Ingraham, J.

(dissenting):

I do not think that a purchaser should be compelled to accept this title. The order of publication concededly fails to comply with section 440 of the Code of Civil Procedure. That section is mandatory and provides, that the "order must contain a direction that on or before the day of the first.publication the plaintifE deposit in a specified post office one or more sets of copies of the summons, com-' plaint and order, each contained in a securely closed postpaid wrapper, directed to the defendant at a place specified in the order.

This, is hot an order of the court, but an order of a judge, and it has been many times held that the order, to give to the' court jurisdiction in the action,, must strictly comply with this mandatory provision of the statute. The summons was published under this order, and the sole jurisdiction óf the court to subsequently decree' a foreclosure of the mortgage and .a sale of the defendant’s-property who was sought to be served under this order, is the publication- of the summons as- 'therein directed. This defendant is not now before the court and the judgment in this action would not be binding upon her. The purchaser, was entitled, to a marketable title, free from serious doubt. I do not think that a title based Upon a .judgment entered in an action where the summons was served upon the owner-of the equity of redemption pursuant to an order which fails to comply with this section of the Code is a marketable title. The order amending the order of publication entered long after, the ■judgment was entered, not made by the judge who signed the original order, Í do not think cures the defect if the failure of the original order of publication was insufficient to give the court jurisdiction iii the action. .

I think, therefore, that as the plaintiff should not be compelled to take this-'title, judgment should be directed for the plaintiff-upon this submission.

Judgment ordered for defendant, with costs. Settle order on notice..  