Hatfield v. Malcolm — 24 N.Y.S. 596

Majority

p. 596

HATFIELD v. MALCOLM et al.

(Supreme Court, General Term, Second Department.

July 28, 1893.)

Headnote

1. Mortgage Foreclosure—Parties.

A plaintiff in a suit to foreclose a mortgage need not join as a party defendant a corporation to which, the laud was transferred by an unrecorded deed, of which company the mortgagor was manager, and which knew of the mortgage proceedings, and took no action in relation thereto.

2. Service by Publication—When Proper.

The sheriff was unable to find defendant at his- home, and was told there in June that* he was out of the state. In July plaintiff was informed that defendant could probably be found at a certain place, and plaintiff unsuccessfully tried to find him there, and defendant’s relatives could not tell where he could be found. Held, that an order for service by publication was justified.

3. Same—Form op Order.

An order for service by publication need not contain an option to plaintiff to make personal service outside of the state.

4. Peperee's Oath—Presumptions.

In the absence of evidence to the contrary, it will be presumed that a referee took the official oath.

Appeal from special term, Westchester county.

Action by Adele M. A. Hatfield against James W. Malcolm and another to foreclose a mortgage. Judgment of foreclosure. From an order denying a motion of the Hew Amsterdam Real-Estate Association to vacate the judgment, said association appeals.

Affirmed.

Argued before BARHARD, P. J., and DYKMAH and PRATT, JJ.

Jeroloman & Arrowsmith, (John H. Clapp, of counsel,) for appellants.

H. T. Dykman, for respondent.

The plaintiff, on the 15th of March, 1892, conveyed certain property in Westchester county to the defendant James W. Malcolm. Malcolm gave back a mortgage for a large part of the purchase money, payable by installments. The mortgage provided that, upon a default in the payment of any installment, the plaintiff was empowered to sell the premises, and out of the proceeds to pay the mortgage debt. A default was made on the 3 5th of June, 1892, in the payment of $6,000, then due, and the plaintiff foreclosed, and sold the property, and bid it in for her debt. Soon after the sale by the plaintiff to Malcolm, he sold the property to the Hew Amsterdam Real-Estate Association. This deed was not recorded when the foreclosure was instituted. Malcolm was the manager for the real-estate company, and, pending the foreclosure, this company was fully informed of the proceedings, and took no action in respect to being made a party defendant, but continued to negotiate for delay, and the objection now made, that the company should have been made a party defendant, is without force. Ho deed was on record. Malcolm was its trustee, and a knowledge that he intended to convey to the company would not have justified

p. 597

the plaintiff in making the company a party until the deed was given.

The order for the publication was based upon sufficient evidence, and was in due form. The sheriff could not find either Malcolm or his wife in Westchester county. He had lived with his father at Mt. Pleasant. Inquiry therein resulted in information that young Mr. Malcolm had gone to Tennessee. This was in June, 1892. In July, 1892, one of Malcolm’s brothers informed the plaintiff’s agents that his brother was at the races at Monmouth Park on the 4th of July, 1893, and he could be found, probably, at Munden’s Cafe, Sixth avenue and Thirtieth street. He could not be found there. Neither his father nor his brother could give information where he could be found. The papers show an extreme effort to serve him with the papers in the state, and fairly justify an inference that he was evading service by absence from the state, or by concealment within it. The order need not contain the option that a personal service out of the state be made personally. The case of Ritten v. Griffith, 16 Hun, 454 , does not so hold. There a personal service out of the state was made without an order of publication, and such a service was held void. The affidavit of publication in the Westchester County Reporter was sufficient. It had a summons annexed to it, which was proved to have been published seven successive weeks, from July, 15, 1892, to August, 26, 1892, both inclusive. The affidavit of publication in the Eastern State Journal is to the effect that an annexed summons had been published seven successive times, beginning July, 16, 1892. The order of reference was not jurisdictive, and is in due form. It directed the referee to examine the plaintiff as to the truth of the allegations of the complaint. The complaint averred that there were no payments, and the plaintiff was examined, and so testified before the referee. As to the fact whether the referee took the official oath the papers are silent. The presumption is in favor of the performance of official duty. The order should therefore be affirmed, with costs and disbursements. All concur.