City & Suburban Homes Co. v. People — 157 A.D. 459

Majority

p. 459

The City and Suburban Homes Company, Respondent, v. The People of the State of New York and Others, Defendants, Impleaded with George F. Martens, Jr., and Bertha C. N. Johnson, as Executors, etc., of George F. Martens, Deceased, Appellants.

Second Department,

June 13, 1913.

Headnote

Real property — registration of title — parties — failure to justify omission of parties defendant —jurisdiction.

Where in an action for the registration of title to real property no persons were originally named as parties defendant, except the People of the State, and “ all other persons, if any, who have any right or interest in or lien upon the property affected by this action, or any part thereof,” but subsequently other parties were made defendants, who, answering, put in issue the material allegations of the complaint, and specifically pointed out various defects in the title sought to be registered, and it appeared from the official examiner’s certificate that title to certain

p. 460

portions of the property was in persons not specifically named as defendants, and there were no facts stated justifying such omission, the court had no jurisdiction to direct the commencement of the action to register such title, or authorize the issue of the summons, and a judgment for the plaintiff should be reversed, and the proceedings dismissed.

Appeal by the defendants, George F. Martens, Jr., and another, as executors, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 6th day of May, 1912, upon the decision of the court after a trial at the Kings County Special Term in an action to register title.

William Bell Wail, Jr. [Henry Crofut White with him on the brief], for the appellants.

Gilbert Bay Hawes, for the respondent.

The form of the complaint and of the summons in this proceeding is similar to that which was considered in Partenfelder v. People ( 157 App. Div. 462 ), decided herewith. No persons were originally named therein as parties defendant except the People of the State of New York, and “ all other persons, if any, who have any right or interest in or lien upon the property affected by this action, or any part thereof. ” Subsequently George F. Martens, Jr., and Bertha C. N. Johnson, as executors of the estate of George F. Martens, deceased, were made additional parties defendant. Answering said complaint, they put in issue all of the material allegations thereof and specifically pointed out various defects in the title sought to be registered, which appeared upon the official examiner’s certificate. It is necessary for us to consider but two of these. In thus -limiting our examination, we leave undetermined the sufficiency of the other questions raised by the appellants.

The property which plaintiff sought to have registered consists of an irregular plot of ground, shown on a map of property of James B. Clarke and others, filed in the office of the clerk of Kings county. It comprises parts of lots 47, 39, 40, 41 and 60, and the whole of lots 42 to 46, 48, 50, 52, 54, 56 and 58 on said map. The certificate of title states that in 1842 lot 47 was conveyed by reference to the said map to Benjamin Davis

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and that in 1849 Davis conveyed said lot with others to Horatio S. Onderdonk. In the latter deed the premises are not described by reference to the numbers on said map but by metes and bounds. This description does not include a strip of ground two and a half inches wide and a hundred feet deep on the easterly side of lot 47. The effect of this is to leave a piece of ground, being part of that for which registration is sought, eighteen feet in width to the west of this strip and another and larger portion to the east thereof. The strip which was not conveyed separates the two. The title to this strip apparently remained in Davis. Neither Davis nor his successors in interest are specifically named as parties defendant to this action, nor is there any fact stated showing the slightest effort to ascertain their names or post office addresses, nor that it would not be possible with reasonable diligence personally to serve them with process. According to said certificate in 1882 a portion of said premises was owned by William D. Murphy, Mary G-. Murphy, Ella L. Murphy, Anna L. Owen and Lizzie Paddock, who derived their title through one William D. Murphy, to whom the property had been previously conveyed by reference to lot numbers on the Olarke map. They attempted to convey this parcel of ground to Robert H. Gr. Murphy, who, in April, 1910, conveyed to plaintiff in these proceedings. In each of said deeds the northerly and one of the southerly courses were stated to be at right angles with Tillary street and the easterly courses were stated to be parallel thereto. As appears from the survey attached to the said certificate the lines of the lots laid down on the said map did not intersect Tillary street at right angles. The result of the conveyances in this form was to leave in the center of the parcel of land for which registration is sought small gores, the title to which still appears, according to said certificate, to be in the said William D. Murphy and others. There is a failure to specifically name either of these parties as defendants in this proceeding, and no fact is stated justifying such omission. Within the rule stated in Partenfelder v. People (supra) the court failed to obtain jurisdiction to direct that an action to register such title should be commenced or to authorize the issue of the summons which was issued.

p. 462

The judgment appealed from should be reversed, with costs, and the proceedings dismissed, with costs.

Jenks, P. J., Rich and Stapleton, JJ., concurred; Carr, J., not voting.

Judgment reversed, with costs, and proceedings dismissed, with costs.