McCracken v. Flanagan , 51 N.Y. St. Rep. 545 ( 1893 )

DYKMAN, J.

This is an appeal from a judgment in favor of the plaintiff in an action of ejectment. The cause was tried before a judge, without a jury, and decided by him in favor of the plaintiff, and from the judgment entered upon such decision the defendants have appealed. The plaintiff claims under a deed from Henry Kahle, who was the owner of the premises at one time, and in the possession of the same. The defendants claim under a deed from the grantee of a sheriff, by virtue of a sale of the premises under a judgment against Henry Kahle, the grantor of the plaintiff. The service of the summons in the action against Kahle was made by publication, and the affidavit upon which the order for publication was made was insufficient, and the judgment was held to be void, for that reason, by the court of appeals. 28 N. E. Rep. 385. . The title of the defendants failed with the fall of that judgment, and their contention that the deed of conveyance from Kahle to the plaintiff was executed while the premises were in the possession of a person claiming under an adverse title is unsupported by the facts. The judgment should be affirmed, with costs. All concur.