Voight v. Schenck — 28 N.Y. St. Rep. 2

Majority

p. 2

Herman Voight v. George Schenck et al.

(Supreme Court, General Term, Third Department,

Filed December 11, 1889.)

Headnote

1. Foreclosure—Parties—Lis pendens.

Where by mistake the receiver of the owner of the equity of redemp- . tian, appointed in supplementary proceedings, was not made a party by a mortgagee in foreclosing his mortgage, it is error for the court to make an order inserting his name in the lis pendens and all subsequent papers nune pro tune.

S. .Same. , .

, If a new party is brought in a new Us pendens must be hied and a supplemental summons must be served.

p. 3

3. Same—Receiver.

The receiver was the owner of the equity of redemption before action brought, and although an officer of the court, his right to defend in a proper case is the same as that of any other person.

Appeal by Thomas A. Murray, as receiver, from order of special term, amending all papers in the action by making such receiver a party thereto.

Action to foreclose a mortgage given by the defendant, George Schenck, to plaintiff. Prior to the commencement of the action Murray was appointed receiver of George Schenck in proceedings .supplementary to execution. This fact being brought to the notice of the plaintiff’s attorneys a few days prior to the sale, they applied for and obtained the order appealed from.

John R. Langan, for app’lt; John T. Norton, for resp’t.

The order appealed from was made after judgment. It inserted the name of Thomas A. Murray as receiver as a party to the action, defendant, in the summons and complaint, lis pendens, judgment, notice of sale and all papers and proceedings, nunc pro tune as of the date of the several papers.

The very object of a Us pendens might be destroyed if the name of a defendant could be inserted nunc pro tune. If a new party is brought in a new Us pendens should be filed.

The effect of this order would be to create a judgment against a man who had never been sued. This cannot be done. N. Y. State Mon. Pan Ass. v. Remington Agricultural Works, 89 N. Y., 22 ; S. C., 25 Hun, 475 ; Bassett v. Fish, 75 N. Y., 304 .

The defendant, Murray, as receiver, had become the owner of the equity of redemption before the commencement of this action of foreclosure. His rights could not be barred by an order inserting his name in a judgment entered on a summons and complaint to which he had not been a party, and with which he had not been served.

Furthermore, if he was to be brought in as a defendant a supplemental summons would have to be served on him. Code, § 453. In no other way could he, except on his own application-, be made a party.

We do not think that the fact that Murray is a receiver deprives him of the right of defending an action lawfully brought against him. It is true that a receiver is an officer of the court. But even officers of the court are entitled to be sued by due process of law when sued at all.

The order appealed from must be reversed. But the plaintiff, if he chooses, may apply to the special term for leave to open the judgment and the sale and to make Murray as receiver a party defendant by serving a supplemental summons upon him. We cannot grant this order here because we do not know what persons may be interested as purchasers at the sale and who may therefore be entitled to notice.

Ho costs are allowed on this appeal.

Landon and Fish, JJ., concur.