
    Ella F. Carman, Plaintiff, v. Theodore Bedell, Defendant.
    (Supreme Court,
    Nassau Special Term,
    November, 1913.)
    Specific performance — action to compel — contract for purchase of real estate — refusal of vendee to take title — proceeding to sell real estate for payment of debts — judgments.
    Where the vendee, under a contract to purchase certain real estate, refuses to take title claiming that it is unmarketable in that in a certain proceeding brought in 1S79 to sell said premises for the payment of a decedent’s debts the court did not acquire jurisdiction because of the insufficiency of the affidavit upon which the order of publication was founded, and because in a litigation in 1906 specific performance of a contract for the purchase and sale of said property was denied by the court, but it appears that said contract called for a title company insurance, which was refused because of the alleged defective publication, but it does not appear that the validity of such alleged defect was litigated or necessarily raised in the action, the finding or decision in said action was not res adjudieata nor binding on the parties in a later action by the vendor to compel specific performance of the contract of purchase, and plaintiff was entitled to judgment on the pleadings.
    Action for specific performance of contract of purchase and sale.
    The above action was brought by the plaintiff as vendor by reason of a certain agreement to sell certain real premises situated at Rockville Centre, L. I. The above agreement of purchase and sale of real estate after several adjournments was set down for closing on October 16, 1913, and the above defendant at the time therein set for closing absolutely refused to take title, claiming that same was unmarketable in two particulars, namely, that in a certain action brought about the year 1879, two defendants in said action were served by publication. At that time the premises were owned by one Jacob Woerman, who died testate and devised the premises in question to his two daughters, namely, Amanda Mitchel and Mollie Howarth. In the action brought to sell the property for payment of debts said Mollie Howarth and Amanda Mitchel were served by publication and the affidavit upon which the order of publication was founded merely recited that Amanda Mitchel and Mollie Howarth were residents of the city of Toledo, Queens county, 0., and added that the deponent in such affidavit, who was the plaintiff’s attorney, used due diligence and effort to locate the said Amanda Mitchel and Mollie Howarth, and serve them within the state of New York. Said affidavit was made positively and not upon information and belief.
    An action was brought by one Louis Leder in the Supreme Court of Nassau county against one William Schneider who had purchaséd the said premises from Elizabeth Carman, the mother of the plaintiff herein, and in said action the judgment stated that the publication herein referred to was insufficient to have conferred jurisdiction upon the judge who made the order in said proceeding which was based upon the title company’s form of contract in which it was provided that the title had to be such as would be approved by the title company.
    The defendant interposed an answer to the complaint alleging the objection that the title was unmarketable by reason of defective publication and also by reason of the judgment previously entered in the action of Leder v. Schneider. A motion was then made by the plaintiff for judgment on the pleadings.
    George Morton Levy, for plaintiff.
    Albín N. Johnson, for defendant.
   Van Siclen, J.

This is an application by the plaintiff for judgment on the pleadings. Counsel concedes that all the material allegations of fact as set forth in the pleadings may be considered as a true and complete statement thereof. The action is brought for specific performance of a certain contract for the purchase and sale of certain real estate located in Nassau county, and the defendant has refused to take title to the property contending that the title thereof is not marketable because jurisdiction was not acquired of certain defendants in an action brought affecting said premises in the year 1879. Such defendants, it appears, were served or attempted to be served by publication. AE-davits upon which the order of publication was granted seemed clearly suficient under recent controlling authorities '(Sunswick Land Co. v. Murdock, 129 App. Div. 579; affd., 199 N. Y. 517), and especially in view of the fact that the same herein attacked only collaterally. See Stanton v. Eastman, 63 Misc. Rep. 385.

The title to the premises in question seems to have been the subject of previous litigation in the year 1906, when specific performance of a contract for the purchase and sale of this property was denied by this court. Said contract, however, provided and called for such a title as a certain title company therein named would insure and said title company thereafter refused to insure on account of the alleged defect referred to, and upon other grounds as well. It seems that the findings in this action were to the effect, inadvertently no doubt, that the title was unmarketable by reason and on account of the alleged defect hereinbefore referred to. It does not appear, however, that the validity of such alleged .defect was litigated or necessarily raised in said action, and the refusal of the title company to insure seems to have been an absolute defense to the action.. Assuming, however, that the refusal of the title company to insure was based solely upon the ground of the alleged defect in publication, still a finding or decision in said action would not in any way be decisive of the point at issue or involved, nor binding upon the parties to this action.

Said motion, therefore, for judgment on the pleadings in favor of the plaintiff must 'be granted, with costs, and in view of the verbal stipulation of the parties, which should be reduced to writing and filed herein, that all the facts relevant to the issues have been pleaded and are contained in the papers submitted. Leave to defendant to plead over is hereby-dispensed with. Findings and judgment should be submitted in accordance with the forégoing memorandum.

Motion granted, with costs.  