Moran v. Conoma

13 N.Y.S. 625, 1891 N.Y. Misc. LEXIS 1606

• Court: The Superior Court of the City of New York and Buffalo
• Decided: March 2, 1891
• Status: Published

Opinion

Truax, J.

The action was brought to foreclose a mortgage made in February, 1853,.by the above-named George Conoma. Shortly after making the mortgage the said George Conoma, who was then a'sailor, left Hew York, and has never since been heard from. The plaintiff made said mortgagor, George Conoma, a party to the action, and he also made “all persons unknown, having or claiming an interest in the premises described in the complaint; such unknown persons or owners being herein described as the wife, widow, heirs at law, devisees, grantees, assignees, or next of kin, if any, of said defendant George Conoma, and their respective husbands and wives, if any, all of whom and whose names, except as stated, are unknown to the plaintiff.” There were other persons made defendants, with the same general description. It is not necessary to set out in full the names of those so made defendants. The appellants contend that the court could not render judgment against the alleged unknown owners without some evidence that they were in fact unknown or absentees, or that the said George Conoma died without heirs at law or next of kin; and refer to section 451 of the Code of Civil Procedure, and to certain cases as authority for that contention; Section 451 says that “where the plaintiff is ignorant of the name, or part of the name, of a defendant, he may designate that defendant in the summons * * * by a fictitious name, or by as much of his name as is known, adding a description identifying the person intended. Where the plaintiff demands judgment against an unknown person, be may designate that person as ‘ unknown,’ adding a description tending to identify him. In either case the person intended is thereupon regarded as a defendant in the action, and as sufficiently described thereinfor all purposes, including service of the summons, as prescribed in article second of the last title.” This section is composed of section 175, and part of section 135 of the old Code. We are of the opinion that Wheeler v. Scully, 50 N. Y. 667, is a direct authority against the appellants in this action. That was an action for the foreclosure of a mortgage executed by the defendant, Scully; and as in this ease, in that, the mortgagor, Scully, left the state in the year 1853, and has not been since heard from. Service of the summons was made under subdivision 6, § 135, of the old Code, which is as follows: “In actions'for the foreclosure of mortgages oti real estate, * * * it' any party or parties having /any interest in or lien upon such mortgaged premises are unknown to the plaintiff, and the residence of such party or parties cannot with reasonable diligence be ascertained by him, and such fact shall be made to appear by affidavit to the court, * * * such court * * * may grant an order that Ihe summons be served on such unknown party or parties by publishing the •same, * * * which publication shall be equivalent to a personal service on such unknown party or parties.” In Wheeler v. Scully the printed book on appeal shows that the action was brought against “Patrick Scully, if living, and his wife, if any, whose name is unknown to plaintiff, and the widow, devisees, heirs at law, and next of kin of the said Patrick Scully, if deceased, who are unknown to the plaintiff.” Judgment was perfected in that action, and upon the sale the premises were bid off by one Oabre. He refused to take title and complete the purchase, upon the ground that from the length of time which had elapsed it was to be presumed that the mortgagor was dead; that it was as much to be presumed that his heirs at law were infants as that they were adults; and, if infants, the judgment did not bar them, as the service of summons was not sufficient as against infants. Whereupon a motion was made to compel him to complete the purchase. It was held by the court of appeals that if it be conceded that the presumption was that the mortgagor was dead,—as to which the court expressed doubt,—and, if the unknown heirs were infants, they were bound by the service, as the subdivision of section 135 above referred to made no exception in case the unknown defendants were infants; and that, if otherwise, there was no presumption that they were infants, and this was for the purchaser to show in order to justify his refusal. We are unable to distinguish Wheeler v. Scully from the case before us. The order appealed from is affirmed, with costs to the plaintiff. All concur.