Hobbs v. Scott

122 A.D. 399, 106 N.Y.S. 836, 1907 N.Y. App. Div. LEXIS 2452

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 22, 1907
• Status: Published

Opinion

Rich, J.:

Acting under the requirements of section 3 of chapter 114 of the Laws of 1883, the registrar of arrears of the city of Brooklyn, on March 25, 1885, sold certain real property situate therein for unpaid taxes, or assessments, to the plaintiffs’ testator, and issued to him.-a certificate of sale. The premises so sold were assessed to one James O’Brien, who,, prior to such sale, died the owner in fee thereof. Hobbs caused the notice provided for by section 5 of said statute, directed to Mary O’Brien, widow; Stephen O’Brien, sole executor, and the children of said James O’Brien and the widow of a deceased son, to be served, the affidavit of such service stating that “ deponent knew the persons so served aforesaid to be'the same persons mentioned in and to whom such notice, of sale was directed respectively, and also knew the said Mary O’Brien so served as aforesaid to be the widow and the said Ellen Frances O’Brien, Joseph E.‘ O’Brien, Catharine L. O’Brien and Walter B. O’Brien so served as aforesaid, and the said James Joseph O’Brien,, deceased, to be the children of the. said James O’Brien, deceased, which'said James O’Brien, deceased, died seized and possessed of an estate in the land mentioned in said notice. That deponent also knew the said líate O’Brien to be the widow of said James Joseph O’Brien, deceased, and the said Stephen O’Brien so served as aforesaid, to be the executor, of said James O’Brien; deceased.” . On or about Movember 11, 1886, said registrar, pursuant to "the provisions of said statute, executed and delivered a deed of said premises to said Hobbs, who recorded the same, entered into immediate possession of the premises and remained in possession thereof until his death. He left a last will and testament containing a power of sale in his executors, which was duly admitted to probate by the surrogate of Kings county, and. the plaintiffs qualified thereunder and are now acting as such executors. On January 2, 190J, they contracted' in ■ writing with the defendant for the, sale of said real property to him, by a proper deed containing a general warranty and the usual full covenants for conveying, and assuring to him the fee simple thereof,- free from all incumbrances. At the time and place fixed in said contract for the delivery of the deed the defendant declined and refused to accept a conveyance upon the ground that the affidavit of service of the notice hereinbefore quoted did not comply with the requirements of section 5 of chapter 114 of the Laws of 1883,

* in that it did not state the knowledge of the server .as to the identity of the persons served.

We think his refusal was unwarranted. The statute does not require the person serving- such notice to state in his Affidavit of service the facts from which liis knowledge was Acquired or the source of such knowledge, differing in this respect fr.om the requirements of rule 18 of the General Rulés of Practice, cited by counsel for defendant, which is limited by its terms to proof of the service-of a summons in an action for a divorce, and is not applicable to an affidavit of service in the proceeding under the statute under consideration, which requires a statement of the knowledge of the affiant as to the identity of the person served. This, requirement was fully met by the statement of the. server that he knew "the persons served to be the widow, children, executor' and widow of a deceased son of the deceased owner to whom the notice is in terms addressed.

The plaintiffs are entitled to judgment according to the terms of the submission, with costs.

Jenks, Hooker, Gaynor and Miller, JJ., concurred.

Judgment for the plaintiffs on submission of controversy, with costs.

Amd. by Laws of 1885, chap. 163.— [Rep,