Hatfield v. Malcolm — 53 N.Y. St. Rep. 863

Majority

p. 863

Adele M. A. Hatfield, Resp’t, v. James W. Malcolm et al., App’lts.

(Supreme Court, General Term, Second Department,

Filed July 28, 1893.)

Headnote

1. Foreclosure—Parties.

Shortly after executing a purchase money mortgage the mortgagor sold the property to an association of which he was the manager, but the deed was not recorded. On foreclosure of the mortgage the association, although informed thereof, took no steps to be made a party, but negotiated for delay. Held, that said company was not a necessary party.

2. Same—Service—Publication.

An order for service by publication need not contain the option that a personal service out of the state be made.

3. Same—Reference.

An order of reference directing the referee to examine the plaintiff as to the truth of the allegations of the complaint is in due form.

4. Same—Oath of referee.

In the absence of any statement in relation thereto it will be presumed that the referee took the official oath.

Appeal from order denying a motion to vacate a judgment in an action of foreclosure which was taken by default.

Jeroloman & Arrowsmith (John H. Clapp, of counsel), for app’lts; H. T. Dykman, for resp’t.

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 instalments. The mortgage provided that upon a default in the payment of any instalment the plaintiff was empowered to sell the premises, and out of the proceeds to pay the mortgage debt. A default was made on the 15th 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 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. No deed was on record. Malcolm was its trustee and a knowledge that he intended to convey to the company would not have justified 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 Mount 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, 1892, and he could be found, probably, at, Munden’s cafe, 6th avenue and 30th street. He could not be found there. Neither his father or 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

p. 865

papers are silent. The presumption is in favor of the performance of official duty.

The order should therefore be affirmed, with costs and disbursements.

Dykman and Pratt, JJ., concur.