Moran v. Conoma — 36 N.Y. St. Rep. 680

Majority

p. 680

Dennis W. Moran, Pl’ff, v. George Conoma et al., Def’ts. In the Matter of Mayer and Simon Loeb, Purchasers, App’lts.

(New York Superior Court, General Term,

Filed March 2, 1891.)

Headnote

Foreclosure—Parties—Unknown owners.

George Conoma executed a mortgage in 1853, and shortly afterward left the city, he being a sailor, and has never since been heard from. On foreclosure of such mortgage the plaintiff made Conoma a party defendant, and also all unknown owners, “such owners being herein described as the wife, widow, heirs at law, devisees, grantees, assignees or next of kin, if any, of said defendant George Conoma, and their respective husbands and

p. 681

wives, if any, all of whose names" were unknown. Held, that the unknown parties were properly designated; that judgment could be entered against them without evidence that they were in fact unknown or absentees, or that Conoma died without heirs at law dr next of kin, and that a sale on the foreclosure conveyed a good title.

(Wheeler v. Scully, 50 N. Y., 667 , followed.)

This is an appeal from an order made at the special term, granting the plaintiff’s motion to compel Mayer Loeb and Simon Loeb, appellants, as purchasers of certain mortgaged premises described in the decree of foreclosure and sale herein, to comply with the referee’s terms of sale and complete their said purchase.

F. J. Myers, for app’lts ; James Kearney, for pl’ff; S. F. Higgins et al., for def’ts.

The action was brought to foreclose a mortgage made in February,' 1853, by the above named George Conoma. Shortly after making the mortgage the said George Conoma, who was then a sailor, left Mew York, and has never since been heard from.

The plaintiff made said mortgagor, George Conoma, a party to the action, and he also made “ all persons unknown having or claiming an interest in the premises described in the complaint, such unknown persons or owners being herein described as the wife, widow, heirs at law, devisees, grantees, assignees, or next of kin, if any, of said defendant George Conoma, and their respective husbands and wives, if any, all of whom and whose names, except as stated, are unknown to the plaintiff.”

There were other persons made defendants with the same general description. It is not necessary to set out in full the names of those so made defendants.

The appellants contend that the court could not render judgment against the alleged unknown owners without some evidence that they were in fact unknown or absentees; or that the said George Conoma died without heirs at law or next of kin, and refer to § 451 of the Code of Civil Procedure, and to certain cases as authority for that contention.

Section 451 says that “ where the plaintiff is ignorant of the name, or part of the name, of a defendant, he may designate that defendant in the summons * * * by a fictitious name, or by as much of his name as is known, adding a description indentifying the person intended. Where the plaintiff demands judgment against an unknown person, he may designate that person as unknown, adding a description tending to identify him. In either case the person intended is thereupon regarded as a defendant in the action and as sufficiently described therein for all purposes, including service of the summons as prescribed in article second of the last title.” This section is composed of § 175 and part of § 135 of the old. Code.

We are of the opinion that Wheeler v. Scully, 50 N. Y., 667 , is a direct authority against the appellants in this action. That was an action for the foreclosure of a mortgage executed by the defendant, Scully, and, as in this case, in that the mortgagor, Scully, left the state in the year 1853 and has not been since heard from.

p. 682

Service of the summons was made under subdivision 6 of § 135 of the old Code, which is as follows: “In actions for the foreclosure of mortgages on real estate •- "" * if any party or parties having any interest in or lien upon such mortgaged premises are unknown to the plaintiff, and the residence of such party or parties cannot with reasonable diligence be ascertained by him, and such fact shall be made to appear by affidavit to the court * * * such court * * * may grant an order that the summons be served on such unknown party or parties by publishing the same * * * which publication shall be equivalent to a personal service on such unknown party or parties.”

In Wheeler v. Scully, the printed book on appeal shows that the action was brought against “ Patrick Scully if living, and his wife, if any, whose name is unknown to plaintiff, and the widow, devisees, heirs at law and next of kin of the said Patrick Scully, if deceased, who are unknown to the plaintiff.” Judgment was perfected in that action, and upon the sale the premises were bid off by one Cabré. He refused to take title and complete the purchase upon the ground that from the length of time which had elapsed it was to be presumed that the mortgagor was dead; that it was as much to be presumed that his heirs at law were infants as that they were adults, and if infants the judgment did not bar them as the service of summons was not sufficient as against infants. Whereupon a motion was made to compel him to complete the purchase. It was held by the court of appeals that if it be conceded that the presumption was that the mortgagor was dead, as to which the court expressed doubt, and if the unknown heirs were infants, they were bound by the service ’ as the subdivision of § 135 above referred to made no exception in case the unknown defendants were infants; and that if otherwise, there was no presump'tion that they were infants, and this was for the purchaser to show in order to justify his refusal.

We are unable to distinguish Wheeler v. Scully from the case before us.

The order appealed from is affirmed, with costs to the plaintiff.

Sedgwick, Gh. J., and Dixgro, J., concur.