p. 2Joseph Von Hatten, Pl’ff, v. Louisa Scholl et al., Def’ts.(Supreme Court, Appellate Division, Second Department,Headnote
1. Judgment—Validity—Misnomer.A judgment of foreclosure is not void merely because a summons and other papers contain the surname only of one of the defendants, where such defendant has been actually served, though no description identifying him, or designation of such person by a fictitious name so far as his Christian name was concerned, was added.
2. Mortgage—Foreclosure—Sale.
In such case, the purchaser has a right to demand that the requisite amendment be made before completing its purchase.
Appeal from an order, denying a motion by a purchaser at the foreclosure sale to be relieved from her purchase.
Lewis Hurst, for app’lt; Edwin C. Shaffer, for resp’t.
One of the defendants in the foreclosure suit was named in the summons and other papers simply as Kaul, with a blank before that name. The plaintiff did not add any description identifying the person intended, as permitted by section 451 of the Code of Civil Procedure, or designate this defendant by a fictitious name, so far as his Christian name was concerned. The purchaser insists that these defects render the judgment void, and hence that she is entitled to be relieved from her purchase. We think the omissions did not invalidate the judgment, if the defendant intended was actually served. In that event they were only irregularities, curable by amendment. Such is the clear weight of authority. Weil v Martin, 24 Hun, 645 ; Grant v. Birdsall, 2 Civ. Proc. R. 422. Before taking the title, however, the purchaser has the right to demand that the requisite amendment be made. This cannot be done upon the affidavit of
p. 3Karl Kaul, which was read in the court below in opposition to her motion. In that affidavit the affiant states that he was duly personally served with the summons and a copy of the complaint in this action more than twenty days before the application for judgment; that his only interest in the premises involved herein was as a monthly tenant; that he has never appeared in the suit, has no defense, and waives any and all objection to the judgment. He does not say, however, and there is no proof, that he is the defendant Kaul mentioned in the summons and complaint with a blank before his name. If the plaintiff shall supply proof of this fact, and to procure the judgment to be amended accordingly, the appellant must complete the purchase.
The order appealed from should be reversed, unless the plaintiff procures an amendment of the foreclosure judgment so as to cure the irregularity growing out of the insufficient designation of the defendant Kaul. The purchaser should also have the costs of this appeal. All concur.