Close v. William M. Calder Co.

Appellate Division of the Supreme Court of New York

Close v. William M. Calder Co.

139 A.D. 175, 123 N.Y.S. 749, 1910 N.Y. App. Div. LEXIS 2151

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 17, 1910

StatusPublished

Cited by2 cases

This text of 139 A.D. 175 (Close v. William M. Calder Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Close v. William M. Calder Co., 139 A.D. 175, 123 N.Y.S. 749, 1910 N.Y. App. Div. LEXIS 2151 (N.Y. Ct. App. 1910).

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Opinion

WOODWARD, J. :

The plaintiff and defendant entered into a contract for the purchase and sale of certain real estate situated in the borough of Brooklyn. The contract provided that the plaintiff should deliver to the defendant a full covenant and warranty deed of the premises, free from all incumbrances. The defendant objects on the ground that the title offered by the plaintiff is unmarketable, for the reason that the plaintiff derives title through a partition sale in which she was' plaintiff and Andrew Blakistone and his four minor children were defendants, and that the service through an order of publication was defective, in that the notice required by section 442 of the Code of Civil Procedure was not addressed to the defendants men-, tioned. There is no question that the notice accompanied the summons, naming the defendants, and was duly published. It appears from the record that Andrew Blakistone, the father of the • minor defendants, acknowledged receipt of a copy of the summons and complaint, sent by mail, so that there is no doubt that all the purposes designed by the'statute have been subserved, and'the only question here presented is, we believe, fully answered by the discussion of Daniels, J., in the case of Loring v. Binney (38 Hun, 152; affd. without opinion, 101 N. Y. 623), which held in a similar case that the failure to name the defendants in the notice did not operate to deprive the court of jurisdiction or to defeat a title. The Loving Case (supva) is cited with approval in Mishkind-Feinberg Realty Co. v. Sidorsky, (189 N. Y. 402, 406) in support of the proposition that “ Unimportant and unessential variations from the form of notice prescribed not affecting the substantial rights of the defendant are irregularities which may be cured by amendment pursuant to the general authority of the court to amend a process, pleading or. other proceeding in furtherance of justice,” and we are of the opinion that it is controlling here.

The plaintiff should have judgment against the defendant for the specific performance of the contract.

Jenks, Burr, Rich and Carr, JJ., concurred.

Judgment for plaintiff on submission of controversy, with costs.

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WOODWARD, J. :

The plaintiff and defendant entered into a contract for the purchase and sale of certain real estate situated in the borough of Brooklyn. The contract provided that the plaintiff should deliver to the defendant a full covenant and warranty deed of the premises, free from all incumbrances. The defendant objects on the ground that the title offered by the plaintiff is unmarketable, for the reason that the plaintiff derives title through a partition sale in which she was' plaintiff and Andrew Blakistone and his four minor children were defendants, and that the service through an order of publication was defective, in that the notice required by section 442 of the Code of Civil Procedure was not addressed to the defendants men-, tioned. There is no question that the notice accompanied the summons, naming the defendants, and was duly published. It appears from the record that Andrew Blakistone, the father of the • minor defendants, acknowledged receipt of a copy of the summons and complaint, sent by mail, so that there is no doubt that all the purposes designed by the'statute have been subserved, and'the only question here presented is, we believe, fully answered by the discussion of Daniels, J., in the case of Loring v. Binney (38 Hun, 152; affd. without opinion, 101 N. Y. 623), which held in a similar case that the failure to name the defendants in the notice did not operate to deprive the court of jurisdiction or to defeat a title. The Loving Case (supva) is cited with approval in Mishkind-Feinberg Realty Co. v. Sidorsky, (189 N. Y. 402, 406) in support of the proposition that “ Unimportant and unessential variations from the form of notice prescribed not affecting the substantial rights of the defendant are irregularities which may be cured by amendment pursuant to the general authority of the court to amend a process, pleading or. other proceeding in furtherance of justice,” and we are of the opinion that it is controlling here.

The plaintiff should have judgment against the defendant for the specific performance of the contract.

Jenks, Burr, Rich and Carr, JJ., concurred.

Judgment for plaintiff on submission of controversy, with costs.

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139 A.D. 175, 123 N.Y.S. 749, 1910 N.Y. App. Div. LEXIS 2151, Counsel Stack Legal Research, https://law.counselstack.com/opinion/close-v-william-m-calder-co-nyappdiv-1910.

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