Liebert v. Reiss

Headnote

Liebert v. Reiss, 174 App. Div. 308 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered October 16, 1916, upon the submission of a controversy, under section 1279 of the Code of Civil Procedure, as to the marketability of certain real property. On November 17, 1909, the Louis Abramson Contracting Company, a domestic corporation, while it was the owner of the property in question, executed and delivered to the State Bank a mortgage in the sum of $10,250, which was duly recorded in the Kings county register’s office. On July 5, 1911, a judgment was recovered against .the said Louis Abramson Contracting Company by Frank Szemko and Joseph Gaydica, copartners doing business under the firm name and style of Szemko & Gaydica, for $426.27, and the'said judgment was duly docketed in the office of the clerk of Kings county on July 6,1911. On or about September 27, 1911, an action was brought in the County Court of Kings county to foreclose the aforesaid mortgage against the Louis Abramson Contracting Company, and against Frank Szemko and Joseph Gaydica, as such copartners as aforesaid, and others. The said foreclosure action resulted in a judgment in favor of the plaintiff therein and a sale of the property pursuant thereto. The plaintiff derived her title to the said premises by mesne

conveyances through the referee’s deed made pursuant to said judgment. In the aforesaid foreclosure action the summons was served only upon Frank Szemko, one of the members of the said copartnership, but was never served upon the other. The defendant herein successfully contended that the summons in the foreclosure action should have been served upon both members of the copartnership and that service upon one was ineffectual to foreclose the hen of the said judgment, or the rights of the other partner in the said property.