Silleck v. Heydrick — 2 Abb. Pr. 57

Majority

p. 57

SILLECK against HEYDRICK.

Supreme Court, Second District; Special Term,

1866.

Headnote

Service bt Publication and Mailing.

The fact that the summons and complaint are mailed before th& filing of the order for service by publication and mailing, does not invalidate the service.

Motion to discharge purchaser at a judicial sale.

This action was brought, by Daniel 0. Silleek, administrator, &c., of Adelia Silleek, and another plaintiff, against Jesse A. Heydriek, and others, for foreclosure of a mortgage; and after judgment and sale, the purchaser objected to the regularity of the proceedings, and moved to be discharged.

Wm. H. Arnoux, for the motion.

Brainard, Rice & Burnett, opposed.

This'is .an application by a purchaser to be discharged from a.purchase of mortgaged premises, sold under a judgment of foreclosure and sale, on the following grounds:

• I. That the affidavit, on which-the order for. .the service of the-summons' on the owner df the equity .'-of-.redemption by publication was granted; was insufficient. •

II. That no copy of the summons and complaint was mailed to the parties to be served by publication, according to the terms of the order.. - -. ....

III. That no copy of the 'order, appointing a guardian ad litem of the non-resident infant defendant, was served, according to the terms of-the order.

The first and third, of the above objections, - were fully considered by me, in the case of Cyprian S. Barnard, against these same defendants,* and were considered unavailable.

The fact that the deposit of the summons and complaint was made before the order directing it was filed, does not invalidate the proceedings. Most of the remarks, made in the other case, in relation to the third objection, apply to this objection.

Upon the whole, I am of opinion that the application must be denied.