O'Connor v. . Felix

42 N.E. 269, 147 N.Y. 614, 71 N.Y. St. Rep. 258, 1 E.H. Smith 614, 1895 N.Y. LEXIS 986

• Court: New York Court of Appeals
• Decided: December 10, 1895
• Status: Published

Opinion

Baetlett, J.

The referee was directed to determine the single question whether the amended summons and complaint were personally served on the defendant Peter W. Felix, the owner of the fee.

Nne witnesses were sworn on the reference, and a large amount of testimony taken.

The referee, at the close of an exhaustive report, stated that he was forced to conclude that the allegations contradicting the affidavit of service upon defendant Felix of the summons and complaint were the result of an afterthought, and wholly false.

We will not go into the details of this evidence although we have examined it with great care, and are satisfied there is no reasonable ground for believing that the defendant Felix was not served.

A brief outline of the material evidence before the referee is to the effect that one Yorke, a process server, swears positively to making service on Felix; while he did not know Felix the latter had been carefully described to him before making the effort to serve him, and after service was made and called in question he identified Felix as the person served when pointed out to him on the street, in church, and in the office of the referee.

The service is alleged to have been made in Eighty-fifth street, on the eighth day of April, 1892.

Felix was engaged in putting marble work in a new building on Madison avenue, between Eighty-fourth and Eighty-fifth streets, and Yorke had arranged with Colwell, the janitor in charge of the new building, to point out to him Felix when leaving the building ; this Colwell did, and service was made.

It was afterwards claimed by Colwell that he purposely misled Yorke,'and pointed out to him a painter who happened at that moment to be leaving the building, named Mulligan.

It is not necessary to follow Colwell through the details of his testimony, but it is sufficient to say that we agree with the referee ■ when he states that because of the open and shameless mendacity of this witness and his many contradictions on the stand, his testimony is entitled to little or no. weight.'

Mulligan testified that some time during his employment on the new building in question he was served on the street by Yorke with papers in a sealed envelope, vpjhich he threw away; he could not fix the date, not even the month.

Yorke swears positively that .he never served papers on Mulligan at any time, and that the papers served on Felix were not in a sealed envelope.

Felix swears that he was never served, and was not at the new building on the day of the alleged service; that he shut himself in his house from about the third of April, 1892, for three weeks,'but denied that he knew this foreclosure action was pending, or that an attempt was being made to- serve him; he afterwards corrected his testimony by stating that he did remain at home to avoid service of papers which his brother-in-law, Fox, informed him were to be served upon him.

It appears that Fox had twice bid in the lots that were subsequently sold to Flagerty, the appellant, on the third sale, and had failed to complete his purchase.

This tends strongly to show that Felix knew of the pendency of this action, and it is not probable that Fox would have bid at the first and second sales of this property had he known that his brother-in-law, who lived in the same house with him, had not been served with the summons and complaint.

Felix admits that he went to Hew Jersey and remained there about two months in order to avoid service of subpoena in this proceeding.

As we are convinced that the witnesses Colwell, Mulligan and Felix are unworthy of belief, it is unnecessary to examine the evidence further.

This action involves the title to eighteen lots of land in the city of Hew York, of which the referee has already conveyed sixteen, and the remaining two are involved in this motion.

While it is true that Felix is not bound by this proceeding, we are satisfied that he was served in this action with the amended summons and complaint, and that the purchaser and appellant, Michael H. Hagerty, was properly required to take title of the two lots in question.

Title to real estate cannot be rendered unmarketable by any such state of facts as is disclosed by this record.

The learned General Term discusses at some length the mode of attack open to the defendant Felix if he should hereafter assail the judgment in this action.

This question, in our opinion, is not presented by this motion, and we express no opinion in regard to it.

The order appealed from should be affirmed, with costs.

All concur.

Order affirmed.