Lowerre v. Owens

14 A.D. 215, 43 N.Y.S. 467

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 15, 1897
• Status: Published

Opinion

O’Brien, J.:

The defendant assails the validity of the title to the premises involved in this controversy upon the ground that in an action brought to foreclose a mortgage, in which action the premises were sold, and thereafter by mesne conveyance came to the plaintiff, an order of publication made therein was void in that it was based upon an insufficient affidavit and was made by the court, instead of being made, as required by the Code, by a judge. The affidavit was sufficient to'confer jurisdiction upon the justice to decide that proper and diligent effort had been made to serve the defendant personally, against whom the order of publication was granted. The order has the Special Term caption and uses in the body thereof the word “ court,” and at the end has the initials of the judge with the direction to enter.. Upon this is based the claim that it is a court and not a judge’s order, and, therefore, is void. It is conceded in the agreed facts that the order “ was made directing the service of the summons in •said action, by Mr. Justice Barrett, then holding Chambers and Special Term for the hearing of non-emunerated motions.”

The question thus presented we do not regard as an open one, it having been many times discussed and passed upon. There is always .a presumption in favor of the regularity of judicial proceedings, and this presumption is strengthened by lapse of time, and it should not be lightly disregarded when attacked collaterally on a technical point of practice. We~must take notice that the order was made by .a justice of the court who had the power to act upon the affidavit, and whose duty it was to entertain applications for judges’ orders, •and was made by such justice while actually holding the court where non-enumerated motions are heard. As was said in the case of Regan v. Traube (16 Daly, 154): “Noone will claim that a judge’s order is invalid simply because made in court. It would be absurd to argue that a judicial officer is less a judge in court than out of it. He may make chambers orders at any place, including 'the court room. It is the constant practice in this county and elsewhere to attend to ex ])a/rte business in court in the intervals of hearing motions, and probably seventy-five per cent of the chambers orders granted are signed by a judge while on the bench. The situation then is that an order is presented to a judge which, in one of his capacities, he has authority to make, and, in his other capacity of representative of the court, he has not authority to.make. ■ After exercising the judicial function of determining that the proofs and other papers submitted are sufficient, the officer on the bench signs the order. Such signature is sufficient, though he uses only his initials, and the fact that his official title is abbreviated is of course immaterial. In which of the officer’s capacities should it be presumed that he acted, his capacity of judge, in which he had power, or his capacity of embodiment of the court, in which his act would have been nugatory ? * * * The law gives a judge the authority to make such an order under certain conditions; all these conditions existed and satisfactory proof was furnished; the parties intended .to follow the law and the judge intended to administer the law. It seems to me that under these circumstances such a strong presumption is raised that the officer did act as a judge and not as the embodiment of the court, that the form of the order and the recitals and the direction to enter must be disregarded.”

This view as to the presumption of judisdiction and the disposition of the court to disregard mere form and a technical objection as to practice is upheld in the cases of Phinney v. Broschell (80 N. Y. 544); Mojarrieta v. Saenz (Id. 553) and Coffin v. Lesster (36 Hun, 347).

We think, therefore, that, as provided by the stipulation, the judgment should be that the defendant complete his purchase pursuant to his contract, and in addition thereto pay the costs of this action.

Van Brunt, P. J., Williams, Patterson and Ingraham, JJ., •concurred.

Judgment ordered for plaintiff as provided by the stipulation, with costs.