Back v. Crussell

2 Abb. Pr. 386

• Court: New York Supreme Court
• Decided: September 15, 1855
• Status: Published

Opinion

Mitchell, J.

A judgment creditor in this action for the foreclosure of a mortgage was made defendant. Being a non-resident, an order of publication was obtained against him. It was granted October 24, 1854, and directed the copy of the summons to be deposited in the post office, but did not say “ forthwith.” The deposit was not made until November, 1854. If this order could be construed as implying that the deposit should be made as the Code requires “ forthwith,” the delay from the 24th of October to the 9th of November, was too great to be considered consistent with the law requiring a deposit forthwith. In the meanwhile, the defendant might have changed his residence, and the direction to him have been incorrect and the plaintiff might have advertised against him fifteen days, and taken so much time from the time after the deposit for the defendant to appear, as the default is to be entered twenty days after the publication in the newspapers is completed without reference to the time of deposit in the mail.

The judgment is so far irregular that the purchaser at the sale is not hound to take. The judgment at special term requiring him to complete the purchase is reversed without costs, and he is in other respects to have such order as results from this reversal, to be settled by one of the judges of the court.