Franklin v. Di Clemente — 123 A.D. 664

Majority

p. 664

Margaret J. Franklin, as Sole Surviving Executrix, etc., of Rachel Margaret Gilsey, Deceased, Appellant, v. Teresa Di Clemente, Individually and as Administratrix, etc., of Francesco Paolo Di Clemente, Deceased, and Others, Defendants. Francesco Di Brienza, Purchaser, Respondent.

Second Department,

January 10, 1908.

Headnote

Foreclosure — failure to take proof of heirship — when title marketable.

The title, to lands, sold on foreclosure; is- not unmarketable, merely because the ■ referee took no proof-of the heirship of infants and absent defendants whose guardian made the usual answer 'in -such action, if the order of reference contained the directions required by rule 60, and the referee took proof of the facts; and circumstances stated in the complaint and examined the plaintiff’s agent under oath as to the mortgage, the payments thereon, the amount -due, and where- any evidence as to heirship would iiot have- affected the. judgment. ■

Appeal by the plaintiff, Margaret J: Franklin, as sole surviving executrix, etc., from -an order of the Sup reine Court, mad'e at the Kings County Special Term and entéred in tli,e. office of the clerk of the county of Kings on the 7th day of June, 1907.

Henry, J. Davenport [Harry Percy David and Henry B. Davenport with him on the brief], for the appellant.,

James C. Danzilo, for the respondent.

The order appealed- from dénips a. motion to- compel.the purchaser at a foreclosure sale to complete the purchase.. The learned Special Term has held the title in question to.be -unmarketable because the.referee took no proof of the heirship of infant and absent - defendants, the guardian ad litem having made the usual .answer ái:d rule 60 of the General Buies of Practice requiring in such case that “ the order of. reference shall also direct the person to whom it is referred to take proof of the facts and circumstances stated in the complaint and to examine.the plaintiff or his agent, on oath.” The court was of the opinion that Smith v. Warringer ( 41 Misc. Rep. 94 ) was applicable, and held that the plaintiff offered no evidence.

p. 665

If no evidence had been offered in this case by the plaintiff, that case might be in point, but here the order 'of reference -contained the proper directions and the plaintiff’s agent was examined under oath before the referee .as to the mortgage, the payments made thereon and the amount due. A single paragraph from the opinion will distinguish the Smith Case (supra, 97): “The order of reference does not contain the directions required by the rule and no proof whatever was taken by the referee to compute

In the case at bar it is difficult to see how any amount of evidence of heirship coiild have affected the judgment of foreclosure which necessarily followed) and it should be noted that it is none of the parties to the action who is objecting. Mo case has been -cited where an appellate court has upheld such a strict compliance with the rule, and there are several cases in which the'. Court of Appeals has held certain omissions to follow the rules of practice to be mere irregularities, not available to one not a party to the action. In my opinion the rule was sufficiently complied with and the .court had jurisdiction to grant the judgment. The -order appealed from should be reversed and the motion granted.

Jenks, Hooker, High and Miller, JJ., concurred..

Order reversed) with ten dollars costs and .disbursements, and motion granted, with costs.

Cases cited

Smith v. Warringer 41 Misc. Rep. 94 Queens Cty. Ct. p. 664