Flanagan v. Thomas ( 1915 )

Judgment for specific performance affirmed, with costs. The learned Special Term has found that the judgment in foreclosure in the action of the Columbus Trust Company against "the heirs at law of Lula P. MeGarry et al., defendants, is conclusive upon all parties thereto, and barred the equity of redemption. This conclusion is well sustained by the judgment roll, and by the evidence aliunde from the Surrogate’s Court of Orange county. That record of letters of administration on the estate of Lula P. McGarry to a creditor as administrator, is followed by the administrator’s subsequent receipt of the surplus moneys in this foreclosure, and its distribution among the deceased’s creditors. As proof of death there was, therefore, the inference from the exact identity of names (16 Cyc. 1055) confirmed by the deceased being described as in the town of New Windsor, where the mortgaged land was situated, together with the surrogate’s subsequent disposition of the proceeds of this mortgaged property. The other objections to dispensing with notice of the application for the appointment of a guardian for the unknown heirs, and to the form of the order of reference, do not affect the judgment, and are, therefore, unavailable to this defendant. Jenks, P. J., Thomas, Carr, Rich and Putnam, JJ., concurred.