Franklin v. Di Clemente

The order appealed- from dénips a. motion to- compel.the purchaser at a foreclosure sale to complete the purchase.. The learned Special Term has held the title in question to.be -unmarketable because the.referee took no proof of the heirship of infant and absent - defendants, the guardian ad litem having made the usual .answer ái:d rule 60 of the General Buies of Practice requiring in such case that “ the order of. reference shall also direct the person to whom it is referred to take proof of the facts and circumstances stated in the complaint and to examine.the plaintiff or his agent, on oath.” The court was of the opinion that Smith v. Warringer (41 Misc. Rep. 94) was applicable, and held that the plaintiff offered no evidence. *665If no evidence had been offered in this case by the plaintiff, that case might be in point, but here the order 'of reference -contained the proper directions and the plaintiff’s agent was examined under oath before the referee .as to the mortgage, the payments made thereon and the amount due. A single paragraph from the opinion will distinguish the Smith Case (supra, 97): “The order of reference does not contain the directions required by the rule and no proof whatever was taken by the referee to compute

In the case at bar it is difficult to see how any amount of evidence of heirship coiild have affected the judgment of foreclosure which necessarily followed) and it should be noted that it is none of the parties to the action who is objecting. Mo case has been -cited where an appellate court has upheld such a strict compliance with the rule, and there are several cases in which the'. Court of Appeals has held certain omissions to follow the rules of practice to be mere irregularities, not available to one not a party to the action. In my opinion the rule was sufficiently complied with and the .court had jurisdiction to grant the judgment. The -order appealed from should be reversed and the motion granted.

Jenks, Hooker, High and Miller, JJ., concurred..

Order reversed) with ten dollars costs and .disbursements, and motion granted, with costs.