Hatfield v. Malcolm , 78 N.Y. Sup. Ct. 51 ( 1893 )

BARHARD, P. J.

The plaintiff, on the 15th of March, 1892, conveyed certain property in Westchester county to the defendant James W. Malcolm. Malcolm gave back a mortgage for a large part of the purchase money, payable by installments. The mortgage provided that, upon a default in the payment of any installment, the plaintiff was empowered to sell the premises, and out of the proceeds to pay the mortgage debt. A default was made on the 3 5th of June, 1892, in the payment of $6,000, then due, and the plaintiff foreclosed, and sold the property, and bid it in for her debt. Soon after the sale by the plaintiff to Malcolm, he sold the property to the Hew Amsterdam Real-Estate Association. This deed was not recorded when the foreclosure was instituted. Malcolm was the manager for the real-estate company, and, pending the foreclosure, this company was fully informed of the proceedings, and took no action in respect to being made a party defendant, but continued to negotiate for delay, and the objection now made, that the company should have been made a party defendant, is without force. Ho deed was on record. Malcolm was its trustee, and a knowledge that he intended to convey to the company would not have justified the plaintiff in making the company a party until the deed was given.

The order for the publication was based upon sufficient evidence, and was in due form. The sheriff could not find either Malcolm or his wife in Westchester county. He had lived with his father at Mt. Pleasant. Inquiry therein resulted in information that young Mr. Malcolm had gone to Tennessee. This was in June, 1892. In July, 1892, one of Malcolm’s brothers informed the plaintiff’s agents that his brother was at the races at Monmouth Park on the 4th of July, 1893, and he could be found, probably, at Munden’s Cafe, Sixth avenue and Thirtieth street. He could not be found there. Neither his father nor his brother could give information where he could be found. The papers show an extreme effort to serve him with the papers in the state, and fairly justify an inference that he was evading service by absence from the state, or by concealment within it. The order need not contain the option that a personal service out of the state be made personally. The case of Ritten v. Griffith, 16 Hun, 454, does not so hold. There a personal service out of the state was made without an order of publication, and such a service was held void. The affidavit of publication in the Westchester County Reporter was sufficient. It had a summons annexed to it, which was proved to have been published seven successive weeks, from July, 15, 1892, to August, 26, 1892, both inclusive. The affidavit of publication in the Eastern State Journal is to the effect that an annexed summons had been published seven successive times, beginning July, 16, 1892. The order of reference was not jurisdictive, and is in due form. It directed the referee to examine the plaintiff as to the truth of the allegations of the complaint. The complaint averred that there were no payments, and the plaintiff was examined, and so testified before the referee. As to the fact whether the referee took the official oath the papers are silent. The presumption is in favor of the performance of official duty. The order should therefore be affirmed, with costs and disbursements. All concur.