
    Thomas H. O’Connor, Resp’t, v. Peter W. Felix et al., Defendants. Michael H. Hagerty, App’lt.
    
      (Court of Appeals,
    
    
      Filed December 10, 1895.)
    
    Mortgage—Foreclosure—Compelling purchaser to take title—Service OE SUMMONS AND COMPLAINT.
    Upon an appeal by the purchaser at a foreclosure sale from an order of the general term, affirming an order of the court at special term, which confirmed the report of a referee appointed to take testimony as to the service of the summons and complaint upon the owner of the fee and requiring the appellant to take title, it was held that the conclusion that the-owner of the fee had been personally served with a summons and complaint in the aciionwas warranted by the evidence, and that, without expressing any opinion as to the mode of attack open to such owner if he-should hereafter assail the judgment in the action, the purchaser was properly compelled to complete his purchase, though the owner was not bound by the present proceeding.
    
      Appeal by the purchaser at foreclosure sale from order of the general term of -the supreme court, 1895, which affirmed an order of the court at special term confirming the report of a referee appointed to take testimony as to the service of the summons and complaint upon the owner of the fee and requiring the appellant to take title.
    This action was brought to foreclose a mortgage of $25,000 made by the defendants Peter W. Felix and wife to the plaintiff, covering eighteen lots of land in the city of New York, On February 10, 1893, judgment of foreclosure and sale- was made and entered on the usual affidavits showing personal service of the summons upon the defendant Peter W. Felix and that all the defendants had been served or had appeared.
    At the sale under judgment the defendant Patrick Fox bid in two of the lots and afterwards failed to complete his purchase. A re-sale was ordered and Patrick Fox again bid in the same two lots and again failed to complete his purchase. An order was made requiring him to complete, which was not complied with, and a third order of a sale of the lots was made, at which sale Michael H. Hagerty, a stranger to the action, purchased but refused to complete, because there was served upon him an affidavit of the defendant Peter W. Felix and an affidavit of the defendant Patrick Fox to the effect that Felix had never been served with the summons in this action.
    A motion was made by the plaintiff to compel the purchaser to complete, and an order was ma.de (under section 1015 of the Code) referring it to a referee, to ascertain whether the service had been made on the defendant Felix. The referee took the proofs offered and reported that the service had been made, and an order was made confirming the report and requiring the purchaser to complete. On appeal to the general term this order was affirmed, and from this order of affirmance the present appeal is taken.
    
      James A. Deering, for app’lt;
    
      Richard O. Gorman, for resp’t.
    
      
       Aff’g 67 St. Rep. 777.
    
   Bartlett, J.

The referee was directed to determine the single question whether the amended summons and complaint were personally served on the defendant Peter W. Felix, and owner óf the fee.

Nine witnesses were sworn on the reference, and a large amount of testimony taken.

The referee, at the close of an exhaustive report, stated that he was forced to conclude that the allegations contradicting the affidavit of service upon defendant Felix of the summons and complaint were the result of an afterthought, and wholly false.

We will not go into the details of this evidence although we have examined it with great care, and we are satisfied there is no reasonable ground for believing that the defendant Felix was not served.

A brief outline of the material evidence before the referee is to the effect that one Yorke, a process server, swears positively to making service on Felix; while he did not know Felix the latter had been carefully described to him before making the effort to serve him, and after service was made and called in question he identified Felix as the person served when pointed out to him on the street, in church, and in the office of the referee.

The service is alleged to have been made in Eighty-fifth street, on the eighth day of April, 1892.

Felix was engaged in -putting marble work in a new building 'on Madison avenue, between Eighty-fourth and Eighty-fifth streets, and Yorke had arranged with Oolwell, the janitor in charge of the new building, to'point out to him Felix when leaving the building; this Oolwell did, and service was made.

It was afterwards claimed by Oolwell that he purposely misled Yorke, and pointed out to him a painter who happened at that moment to be leaving the building, named Mulligan.

It is not necessary to follow Colwell through the details of his testimony, but it is sufficient to say that we. agree with the referee when h.e states that because of the open and shameless mendacity of this witness and his contradictions on the stand, his testimony is entitled to little or no weight.

Mulligan testified that some time during his employment on the new building in question he was served on the street by Yorkc with papers i'n a sealed envelope, which he threw away; he could not fix the date, not even the month.

Yorke swears positively that he never served papers on Mulligan at any time, and that the papers served on Felix were not in a sealed envelope.

Felix swears that he was never served, and was not at the new building on the day of the alleged service; that he shut himself in his house from about the third of April, 1892, for three weeks, but denied that he knew this forclosnro action was pending, or that an attempt was being mado to serve him ; he afterwards corrected his testimony by stating that he did remain at home to avoid service of papers which his brother-in-law, Fox, informed him were to be served upon him. .

It appears that Fox had twice bid in the lots that were subsequently sold to Hagerty, the appellant, on the third sale, and had failed to complete his purchase.

This tends strongly to show that Felix knew of the pendency of this action, and it is not probable that Fox would have bid at the first and second sales of this property had he known that his brother-in-law, who lived in the same house with him, had not been served with the summons and complaint.

Feliz admits that he went to New Jersey and remained there about two months in order to avoid service of subpoena in this proceeding.

As we are convinced that the witnesses Oolwell, Mulligan and Felix-are unworthy of belief, it is unnecessary to examine the evidence further.

This action involves the title to eighteen lots of land in the city of New York, of which the referee, has already conveyed sixteen, and the remaining two are involved in this motion.

While it is true that Felix is not bound by this proceeding, we are satisfied that he was served in this action with the amended summons and complaint, and that the purchaser and appellant, Michael H. Hagerty, was properly required to take title of the two lots in question.

Title to real estste cannot be rendered unmarketable by any such state of facts as is disclosed by this record.

The learned general term discusses at some length the mode of attack open to the defendant Felix if he should hereafter assail the judgment in this action.

This question, in our opinion, is not presented by this motion, and we express no opinion in regard to it.

The order appealed from should be affirmed, with costs.

All concur. Order affirmed.  