
    Augustus F. Ferris, App’lt, v. John F. Plummer, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 13, 1887.)
    
    Substituted service equivalent to. personal 'service to support lis pendens—Code Civ. Pro., §§ 435 and 1670.
    An action was commenced for the foreclosure of a mortgage, the summons being served pursuant to Code Civil Procedure, section 435, and a Us pendens;'was filed in the proper county. After the filing.of said lis pendens certain mechanics’ liens were filed. Held, that substituted service was equivalent to personal service, within the spirit of Code Civil Procedure, section 1670, for the purpose of supporting the Us pendens: Pratt, J., dissenting.
    Appeal from a judgment of the Kings county special term dismissing the complaint, with costs on the merits.
    On January 5, 1886, the appellant and respondent agreed in writing that the appellant should sell and the respondent should purchase certain premises situated in the city of Brooklyn. ....
    On the day appointed for carrying out the agreement the defendant refused to accept the title offered by the plaintiff, claiming that a certain mortgage, mechanics’ lien and judgment, which were not mentioned in the contract, were liens and incumbrances on the title to the property. - This action was begun to compel the respondent to specifically perform the contract. The appellant acquired title to the property through a deed to him from the sheriff of Kings county, made under and pursuant to a judgment of foreclosure and sale entered in an action brought in the' supreme court, Kings county, by William I. Preston against William H. Algie to foreclose a mortgage for $5;,000. on said property, dated October 18, 1884. On February 11, 1885, William I. Preston, the plaintiff in said action, obtained from said court an order directing that the service of the summons therein be made upon "the defendant Algie, under and pursuant to sections .435-437 of the Code of Civil Procedure, and on February 12, 1885, said service was duly made as required by said sections and order. On February 16, 1885, the affidavit of such service was duly filed in the Kings county clerk’s office. The mortgage, judgment and mechanics’ liens claimed by the respondent to be liens or incumbrances on said property were filed or recorded subsequent to December 17, 1884, the date of filing the notice of Us pendens. The respondent claimed that these incumbrances, though junior in date to the fifing of the notice of Us pendens, were not barred thereby or by the foreclosure proceeding for the reason that those lienors were not parties to the suit and no personal service was made upon the defendant therein, but he was brought in by a ■ substituted service and subsequently appeared; that such substituted' service did not render the notice-of lis pendens effectual, nor was such appearance made within sixty days after the filing of the complaint, nor until after the recording of said liens.
    This was the only question raised and passed upon at the trial.
    
      B. F. Tracy, for app’lt; Booraem & Hamilton, for resp’t.
   Barnard, P. J.

The record in the foreclosure action of Preston v. Algie, shows a case of complete jurisdiction over the parties for all purposes. The action was commenced on December 17' 1884, by the filing of the summons and complaint and Us pendens in the office of the clerk of Kings county.

On the eleventh of February following an order for a substituted service was obtained and the summons was served in accordance therewith. On March 2, 1885, the defendant appeared- and answered and the case was tried upon its merits. Judgment - of foreclosure and Sale was directed,-, and the sale was made under it, at which the plaintiff’s title was acquired. Subsequent to the filing of the Us pendens, certain liens -were put upon the property mortgaged, and the sole question is whether these hens were cut off by the-judgment. It seems to me plain that they were. ...

By section 1671 of the Code all such lienors are bound by the proceedings, subsequent to the fifing of lis pendens the same as if the lienors were parties to the action. The substituted service was made on the 16th of February, 1885. It was the sixty-first day after the filing of the notice of lis pendens. This was in time. Gribbon v. Freel, 93 N. Y., 93.

Substituted- service was equivalent to personal service within the spirit of section 1670 of the Code for the purpose of supporting the lis pendens. The trouble arises only from the fact that substituted service is comparatively a new mode of service, and the old sections were not all made to conform to the addition. It certainly could not be within the spirit of the law that a service which is good as to the parties, and when the court has jurisdiction of the subject matter, should not be good as against subsequent lienors.

The defendant appeared as has been stated and made no objection to the mode of service upon him. The service was within the time, but the name for the particular service is not contained in the section, which upholds a lis pendens. when the summons was served within sixty days from its fifing. ’ The section meant to include two methods of service, and its only restriction was that the service be made within the limited time, so that a Us pendens could not be used' perpetually to notify subsequent lienors without activa prosecution of the action.

The judgment should be reversed and a new trial granted, costs to abide event.

Dykman, J., concurs.

Pratt, J.

(dissenting).—Further reflection confirms the opinion expressed upon the former hearing that Bogart v. Swezey (26 Hun, 463) is an authority directly in point to the effect that the substituted service in Preston v. Algie is not equivalent to a service by publication and will not sustain the Us pendens.

It is difficult to see why substituted service should not be regarded as good as service by publication, but that matter is left out of the Gode in cases of attachment and foreclosure. It may have been an oversight on the part of the codifiers, and the court may have been mistaken in construing the sections. But while that decision remains uncontrolled by the determination of a higher court, we should not be warranted in requiring a purchaser to take a title against which that authority could be quoted.

The contention that the subsequent lienors are concluded by the judgment cannot prevail as they were not parties to the suit. If the Us pendens fell by reason of want of proper service, nothing will avail to cut off these incumbrancers except a judgment in a suit wherein they are-parties.

We are compelled to adhere to the conclusion reached, upon the former argument that the judgment of the special term should be modified by striking out the costs granted therein, and, as thus modified, affirmed, without costs. 
      
      See 8 N. Y. State Rep., 905.
     