Reilly v. Hart — 42 N.Y. St. Rep. 655

Majority

p. 655

Jennie E. Reilly and Jennie Reilly, App’lts, v. Charles Hart, Resp’t.^[1]

(Court of Appeals, Second Division,

Filed February 9, 1892.)

Headnote

Service—Publication—Terminates at death oe plaintive.

When service by publication in a foreclosure action was about half completed the plaintiff died, ihe publication was continued, the action revived b/ the plaintiff’s executors, and judgment recovered therein. Held, that the publication being incomplete at the time of the plaintiff’s death, the summons had not been served upon the non-resident defendants and the court acquired no jurisdiction, and defendant was justified in refusing to accept the title derived from the referee’s sale under such judgment.

Appeal from judgment entered upon the direction of the general term of the supreme court in the second judicial department in a controversy submitted for determination.

John R. Kuhn,for app’lts ; Jesse Johnson, for resp’t.

The controversy arose upon the refusal of the' defendant to complete the purchase of certain land in the city of Brooklyn, which land was the subject of a contract between the parties, whereby the plaintiffs agreed to sell and convey it by full covenant warranty deed to the defendant and the latter to purchase it at the price of $8,360. The refusal was upon the asserted ground that the plaintiffs were unable to convey a perfect title to the premises. The title of the plaintiffs was derived from the purchaser of the property on a sale made pursuant to a judgment of foreclosure of a mortgage. And the objection was founded on the charge that such foreclosure sale was ineffectual to bar the equity of redemption of one Lynch, who had the title subject to the mortgage. Lynch and his wife resided in the state of Louisiana. The action to foreclose the mortgage was commenced by one Goggshall in November, 1874, by the service of the summons personally upon two defendants other than Lynch and his wife. And in December following an order for service of the summons by publication upon them was obtained, and the summons was published accordingly, but before that service was completed the plaintiff in the action died. The publication of the summons, nevertheless, proceeded to the termination of' the six weeks, the time directed by the order. And ■ afterwards, pursuant to the order of the court in which that action was brought, it was continued in the name of the executrix of the will of the deceased plaintiff. The defendants Lynch did not appear. And the decree was thereafter entered and the sale pursuant to it had. The question is whether the summons was effectually served upon defendants Lynch. The action having been commenced by the personal service of the summons .on the two other defendants, was properly continued in the name of the executrix as plaintiff. Code, § 121; Livermore v. Bainbridge, 49 N. Y., 125 .

p. 656

As the requisite time to effect service by publication had not expired at the time of the death of the original plaintiff, the summons had not then been served upon the defendants Lynch, and the court had acquired no jurisdiction of them, although it had of the action by the personal service of the other defendants. But the effect of the death of the plaintiff was to produce a suspension of further proceedings until bis successor was placed in that relation to the action. What had been accomplished in it while there was a plaintiff remained effectual, and when the ex- ■ ecutrix became such, progress in the action could properly be made from the place in the proceedings where the suspension had left them. Moore v. Hamilton, 44 N. Y., 666 .

In that view, the order for service of the summons by publication may have remained available, but it is not seen how the four weeks’ publication of the summons before the death, and the ' two weeks following, could be treated as'an effectual service upon those non resident defendants. During the latter period there was no plaintiff,' and in practical effect no action to support any proceedings within that time. The prior publication of the summons was then an unaccomplished attempt to servé it. And to constitute a service in that manner it was necessary to publish once in each of six successive weeks in the two designated newspapers.

There was then no service of the summons on those defendants while the action in which the order was made had any party plaintiff, and for that reason it was in a suspended condition and could not support any proceeding then taken for any purpose other than to continue it in the name of the successor as such. Before the death of the original plaintiff the court had acquired no jurisdiction of those defendants. It could not obtain any during the suspension following his death. And consequently it had no jurisdiction of them at the time the executrix became plaintiff, and it does not appear that their persons were thereafter in any manner brought in that relation to the court. It is suggested that the situation is no different than it would be in case of an assignment by a plaintiff during the pendency of an action; but it may be seen that in such case there would continuously be a plaintiff and for that reason not necessarily any legal suspension of proceedings. As the statutory provisions relating to the continuance of the action at the time in question were in the old Code, no reference to those of the present Code is called for. But the latter in the respect under consideration do not modify the rule applicable to the present case.

These views lead to the conclusion that the defendant was justified in his refusal to accept under the contract the title which the plaintiffs were able to convey, and that the judgment should be affirmed.

Judgment affirmed, with costs.

All concur.