Connor v. Connor

This is an appeal by the defendants McGarrity, who were purchasers at the sale in partition herein, from an order made by Mr. Justice Andrews refusing to set aside the interlocutory judgment on the ground that notice to creditors having ■liens against the párties to the action by advertisement was not given and that as there are lien creditors not cut off the sale of the premises was irregular and should not be confirmed. Concurrently with the motion to set aside the judgment, a motion was made to confirm the sale, but the proceedings were stayed pending this appeal. The alleged irregularities were as follows:

First. That a certain corporation known as the John Kress Brewing Co., a mortgagor, had not been made a party to the action and had not received notice of the application for the judgment.

Second. The second alleged irregularity is that the referee advertised for liens for six weeks (6) in only one newspaper.

The first objection is of no value, for the reason that the notice of Us pendens in this action was filed on the 7th day of June, 1889, and the mortgage was not executed or recorded until the 23d day of November, 1889, which was more than six (6) months after the filing of the Us pendens. It is expressly provided by § 1671 of the Code that a person whose conveyance is executed or recorded after the filing of the notice of Us pendens is bound by all proceedings taken in the action after the filing of the notice to the same extent as if he were a party to the action. Fuller v. Scribner, 76 N. Y., 190 ; Kindberg v. Freeman, 39 Hun, 466 . The next objection in regard to the publication does not seem to be well taken. Section 1562 of the Code provides where a reference is directed in an action of partition, the referee must cause a notice to be published once in each week, for six (6) successive weeks, in such newspaper published in the county wherein the place of trial is designated as shall be designated by the

The appellant’s contention is that notice should be published in two (2) newspapers published in ¡New York county, because the property is therein situated and because it is the county for the trial of the action. Prior to 1887 it was necessary to make publication in the state paper, but in that year an amendment was adopted by the legislature substituting a local newspaper for the publication of the notice required to be given. There is nothing in the section mentioned which requires a publication in two newspapers unless the property of which partition is sought is in two counties, as clearly indicated by the language of the section, which, after providing for a publication in the county wherein the place of trial is designated, provides also for the publication in a newspaper published in each county wherein the property is situated, and the provision thus applied would require and would secure a publication of the proceeding in each county wherein any of the property sought to be partitioned was situated. The publication, it must be observed, is not to be made in “ newspapers,” but in “such newspaper.” This language confirms the propriety of the construction adopted and shows clearly that the publication in newspapers in any of the counties wherein the property is situated was not provided for and was not contemplated, but one newspaper only. For these reasons the order appealed from must be affirmed.

Daniels, J., concurs.

I cannot find from the record that the newspaper in which publication was made was ever designated by the court. But the referee having reported the publication to the court, and the court having confirmed his action, such confirmation was equivalent to an original designation. I concur, therefore, in result.