
    (8 Misc. Rep. 606.)
    GUYER v. RAYMOND.
    (City Court of Brooklyn, General Term.
    May 28, 1894.)
    Summons—Publication as to Unknown Dependants.
    In an action for partition, service of summons by publication on a ac-. fendant who had been absent and unheard of for 18 years, and on his wife, if any, his heirs, grantees, devisees, or assignees, as unknown defendants (Code Civ. Proc. § 438), is sufficient to cut off his brothers and sisters, whose names are known, in case it should afterwards appear that such defendant had died, leaving no wife or children, and no devisees, grantees, or assignees.
    Controversy between Eliza Guyer, as plaintiff, and Jasper N. Raymond, as defendant, submitted on agreed statement of facts. Judgment for plaintiff.
    Argued before CLEMENT, C. J., and VAN WYCK and OSBORNE, JJ.
    Luther W. Emerson, for plaintiff.
    Frederick C. Leubuscher, for defendant.
   VAN WYCK, J.

This controversy comes before us upon agreed facts, under sections 1279-1281 of the Code of Civil Procedure. In a partition suit, one of the record owners, James Mahady, had been absent from the state, and unheard of, for 18 years. It was not known whether he was living or dead, or whether he was married or unmarried, or whether he had children or not. It is conceded that service of the summons therein was duly made on him and on his wife, if any, his heirs, grantees, devisees, or assignees, as unknown defendants, by publication, pursuant to an order under and by virtue of section 438 of the Code of Civil Procedure.

The contention of defendant herein, who is under contract to purchase the premises from the plaintiff, the purchaser at the partition sale, is that, if James Mahady is dead, and left him surviving no wife or children, no devisees or grantees or assignees, that then his brothers and sisters, whose names are known, cannot be cut off by the judgment of partition as unknown defendants. This mode of service on unknown defendants is applicable to partition actions by section 1541 of the Code of Civil Procedure. Assuming that James Mahady was dead at the time of the commencement of the partition action, and that no one had heard from him after he departed from the state at the age of 19, some 18 years before, can it "be seriously questioned by any one, without some proof, that he died without marrying, or without children or devisees, or without granting or assigning his interest, and that those who succeeded to his interest are unknown? If he is dead, his heirs are unknown, for who can say who they are without some proof on the subject? We think his hems, whoever they may be, are bound by the judgment, for they were properly served as unknown defendants. Wheeler v. Scully, 50 N. Y. 667; Moran v. Conoma, (Super. N. Y.) 13 N. Y. Supp. 625; Abbott v. Curran, 98 N. Y. 665. The plaintiff is entitled to judgment, with costs and disbursements. All concur.  