Ferris v. Plummer

The record in the forelosure action of Preston v. Alger, snows a case of complete jurisdiction over the parties for all purposes. The action was commenced on December' 17, 1884, by the filing of the summons and complaint and Us pendms in the office of the clerk of Kings county.

On the eleventh of February following, an order for a substituted service was obtained, and the summons was served in accordance therewith. On March 2, 1885, the defendant appeared and answered and the case was tried upon its merits. Judgment of foreclosure and sale was directed and the sale was made under it at which the plaintiff’s title was acquired. Subsequent to the filing of the lis pendens, certain liens were put upon the property mortgaged, and the sole question is whether these liens were cut off by the judgment. It seems to me plain that they were. By section 1671 of the Code, all such lienors are bound by the proceedings, subsequent to the filing of the lis pendens the same as if lienors were parties to the action. The substituted service was made on the 12th of February, 1885, and proof of same wás filed on 'the 16th day of February, 1885, making a complete service. Their substituted service was the sixty-first day after the filing of the notice of Ms pendens. This was in time. (Gribbon v. Freel, 93 N. Y., 93.) Substituted service was equivalent to personal service within the spirit of section 1670 of the Code, for the’purpose of supporting the Ms pendens. The trouble arises only from the fact that substituted service is comparatively a new mode of service, and the old sections were not all made to conform to the addition. It certainly could not be within the spirit of the law, that a service which is good as to the parties, and when the court has jurisdiction of the subject-matter, should not be good as against subsequent lienors. The *518defendant appeared, as lias been stated, and made no objection to tbe mode of service upon him. The service was within the time, but the name for the particular service is not contained in the sec tion which upholds a Us pendens, when the summons was served within sixty days from its filing. The section meant to include all methods of service, and its only restriction was, that the service be made within the limited time so that a Us pendens could not be used perpetually to notify subsequent lienors, without active prosecution of the action.

The judgment should be reversed, and a new trial granted, costs to abide event. '

(dissenting):

, Further reflection confirms the opinion expressed upon the former hearing, that Bogart v. Swezey (26 Hun, 463) is an authority directly in point to the effect that the substituted service in Preston v. Alger is not equivalent to a service by publication and will not sustain the Us pendens.

It is difficult to see why substituted service should not be regarded as good as service by publication, but that matter is left out of the Code in cases of attachment and foreclosure. It may have been an oversight on the part of the codifiers, and the court may have been mistaken in construing the sections. But while that decision remains uncontrolled by the determination of a higher court, we should not be warranted in requiring a purchaser to take a title against which that authority could be quoted. The contention that the subsequent lienors are concluded by the judgment cannot prevail as they were not parties to the suit. If the lis pendens fell by reason of want of proper service nothing will avail to cut off these incumbrances except a judgment in a suit wherein they are parties. We are compelled to adhere to the conclusion reached upon the former argument, that the judgment of the Special Term should be modified by striking out the costs granted therein, and as thus modified affirmed, without costs.

Judgment reversed and new trial granted, costs to abide event.