In re Ketchum

113 Misc. 18

• Court: New York Supreme Court
• Decided: August 15, 1920
• Status: Published

Opinion

Benedict, J.

This is a proceeding for the registration of title. No answer has been filed and no person appears to oppose the registration except the attorney-general, who raises a number of objections, which I shall consider.

1. The objection that the notice of pendency required by section 382 of the Beal Property Law was not filed in the office of the registrar at the time of filing the petition, is not, I think, fatal to the proceeding. Where the offices of registrar and county clerk are separate (as is the case in the counties having registers of deeds), the notice of pendency should be filed in both offices on the same day the petition is filed. This seems to be the only possible construction of the • section in view of the provision requiring the notice filed with the registrar to be noted on the “ ticlder certificate book,” which could.not be done if notice need only be filed with the county clerk in such counties. The notice was, however, filed with the registrar some time later. The defect is not jurisdictional, however, but is an irregularity merely, especially since the section provides that the notice “ shall constitute notice of the pendency of the petition and of the proceeding, and shall be governed in all respects by the same rules as a notice of pendency of an action,” under sections 1670-1674 inclusive of the Code of Civil Procedure. Failure to file a notice of pendency with the complaint does not affect the jurisdiction of a court in an action, and in view of the provision above quoted, the failure to file the notice cannot be held to be jurisdictional in this proceeding; the notice having been filed in the registrar’s office some time before the application for final order of registration, the irregularity is one which may be disregarded.

2. The next objection relates to the description of the premises in the petition and the notice of hearing. The petition describes a parcel of land beginning at a point on the westerly side of St. James place at the center of a party wall standing partly on the premises and partly on the lot next adjoining on the south, distant northerly from the northwesterly corner of Grates avenue and St. James place 228 feet nine and one-half inches, and being 100 feet in depth by 25 feet and two-twelfths of an inch in width. It appears from the survey that the center of the party wall is located 228 feet five inches northerly from the said corner. After service of the notice of hearing, which contained the same form of description, the petition was amended nunc pro tunc “so as to include within the property sought to be registered, the four inch strip on the northerly boundary of said property referred to in said description.” This amendment leaves the description vague and unsatisfactory in form. The final order directing registration must be founded upon “ an adequate description of the land ” (Real Prop. Law, § 379, subd. e), such as is contained in the proposed final order, and the description in the petition and final order should correspond. The petition should, therefore, be further amended so as to show the true distance of the point of beginning from the corner, and the true dimensions of the premises.

I think that a new notice of hearing should also be given. It has .been held that a complete description of the premises is not required in the notice (Real Prop. Law, §§ 380, 386; Matter of Fetzer, 104 Misc. Rep. 442); but the description should be accurate, so far as it goes, and if a full description be given which is inaccurate in so substantial a particular as a difference of four inches in width, the notice is insufficient to support a final order for the registration of title of the premises by a different description.

3. All of the remaining objections relátelo or grow out of errors in the descriptions in certain deeds in the chain of title. In a deed from Mary L. Young to Julia C. Douglass, dated July 1, 1861, and recorded on July 23, 1861, the premises are described as beginning at the center of the party wall above mentioned, which- is stated to be 228 feet nine and one-half inches northerly from the corner, and the width of the premises is given as 25 feet one-sixth of an inch. Adding these measurements together would make the northerly line distant from the corner 253 feet nine and two-thirds inches, a distance more than sufficient to include the premises described in the proposed final order which gives 228 feet five inches as the distance of the starting point from the corner and the width 25 feet four inches.

But as the party wall,' which constitutes the monument, was in fact 228 feet five inches from the corner, that controls the distance as given in the deed and leaves about four inches on the northerly side not covered by the deed still standing of record in the name of Mary L. Young or those claiming under her.

Subsequently in 1867 ¡John T. Barnard, being the owner of the premises, conveyed the southerly half thereof to one party and the northerly half to another by such descriptions as leave unconveyed a strip four and one-half inches wide between the two parcels, title to which strip is apparently outstanding of record in him or those claiming under him.

The petitioner claims that these defects in title are cured by adverse possession. The latter defect is claimed also to have been cured by foreclosure, but I do not find any record of any foreclosure which would have that effect. The foreclosure of Poillon v. Wiley certainly would not be effectual for that purpose.

The proof of adverse possession is, however, inadequate. It extends back only about eighteen years. Furthermore, it appears from the survey that the northerly building on petitioners’ premises does not extend the entire width of the strip, but that one corner of the building only projects part way across the strip. No proof' of adverse possession is produced so far as the strip apparently remaining in Barnard is concerned.

Furthermore, there should be more detailed proof of efforts on the part of petitioner to find! Mary L. Young and John T. Barnard or their respective heirs, devisees, etc. An examination of the surrogate’s records in Kings county might disclose all the facts. Also John T. Barnard or those claiming under him should be made parties to the proceeding, otherwise than by the general sweeping clause against unknown parties.

For these reasons, the application will be denied, but without prejudice to the renewal thereof on the removal of the several grounds of objection above mentioned.

Ordered accordingly.