Moir v. Flood

McLaughlin, J.: This action was brought for the foreclosure of a mortgage upon certain real estate in the city of Hew York. It proceeded to judgment, and in pursuance thereof, on the 22d of August, 1901, the premises were sold at public auction to one Bendheim, who then paid ten per cent of the purchase money and signed terms of sale, [546] which', among other things, fixed the ninth of September following as the time for. the final completion of the purchase. Intermediate the sale and on the ninth of September, Béridheim assigned his bid with the consent of the referee to the respondent Cohn. On the ninth of .September the completion of the sale was adjourned by mutual consent to the twelfth, and on the twelfth to the sixteenth, and on the sixteenth until the eighteenth. These adjournments were taken for the purpose of enabling the plaintiff to curé certain defects alleged to exist in the title proposed to be given. On the eighteenth the respondent was ready and willing to complete his purchase, provided he could Obtain a marketable title. He made two objections, however, to the title tendered — one, that there was an outstanding dower interest in one Helen M. Cain, widow of Michael Cain, deceased, -who gave the mortgage foreclosed and who was at the time of his death the owner of the premises covered by it; and the other that under the will of Michael Cain, deceased, the' title to the real estate covered by the mortgage was in two trustees named in his will and that they were not made parties defendant to the action. The plaintiff thereupon applied to the referee for an adjournment for the purpose of removing these alleged defects, which was objected to by the respondent. The objection was overruled and further proceedings adjourned until the twenty-fifth of the same month. On this date Cohn did not appear, but instead he served upon- the referee and the plaintiff’s attorney an affidavit and notice of motion that he would apply to the court, at the time stated in the notice, for an order relieving him from his purchase. The motion coining on to be heard, the same was granted upon the ground-—as appears from the opinion delivered by the learned justice sitting at Special Term —that the referee had ño power, against the objection of Cohn, to adjourn from the- eighteenth- to the twenty-fifth -of September,. From this order the plaintiff has appealed. The referee had the power to grant the adjournment. He was an officer of the court and as such could grant a reasonable adjournment, if, in the exercise of his judgment,, he deemed it advisable for the protection of the. rights of any of the parties to the .action. (Angel v. Clark, 21 App. Div. 339.) It was lfis duty to see that the sale was fairly conducted and the rights of all parties to it pro [547] tected, and to that end he not only had the power, hut it was his duty, if necessary, to adjourn the sale. (Barr v, Benzinger, 27 App. Div. 590.) I am, however, of the opinion that the order must be affirmed for the reason that the referee could not give to the purchaser a marketable title. There was, at the time the motion was made, an outstanding dower interest in the widow of the mortgagor. It is not questioned but what the first objection made to the title was, when the objection was made, and on the twenty-fifth, the date to which the proceeding had been adjourned, a good one; that Helen M. Cain was the widow of Michael Cain, deceased, who was the maker of the mortgage foreclosed in the action; she did not sign the mortgage and had never released her dower interest in the premises covered by it. Mor is it questioned that she had, in fact, brought an action which was at that time pending in the Supreme Court to enforce her dower rights. But it is urged by the appellant that he had, at the time of the hearing of the motion, procured a release of her interest and a consent to the discontinuance of her action. He did not have this release on the twenty-fifth of September, and he did not procure it until several days thereafter, and this was not a release, but an assignment of her dower interest to one Bright, who, according to the papers used upon the motion, then held that interest. ■ It is true that Bright says he is ready and willing to deliver “ to the assignee of the purchaser of the mortgaged premises at the referee’s sale, or to any one whom he may name, a release in due form of law of the dower of the said Helen M. Cain in the premises affected by this action so assigned to me,” but so far as appears an assignment of this interest has never been tendered to Cohn. I am also of the opinion that under the facts set out in this record the failure to make James Hagan and Rose Flood as trustees under the will of Michael Cain, deceased, parties defendant was an irregularity in the proceedings which rendered the title unmarketable, or at least cast such doubt upon it that a reasonable man acting under the same, or similar circumstances, would hesitate to take it. It is suggested, not by counsel, that there is no proof in the record that James Hagan and Rose Flood are trustees under the will of Michael Cain, or if so, that they have any interest in the premises. I do not [548] sd' read the record. • In the affidavit of Cohn — and that of his attorney is substantially to the same effect—-it is alleged “ that.the plaintiff * * * has failed to bring in as parties defendant to this action the said James Hagan and Rose Flood as trustees under the will of Michael Cain, deceased; that the said will of Michael Gain, deceased, has been filed for probate upon the petition of one of the executors, and that the probate of said will is now pending in the Surrogate’s Court of the County of Hew York ; that the said testator, Michael Cain, by his said will, left all.his real estate to his executors in trust for an adopted daughter, Mary Ann Cain, * * * until she became twenty-one years of age; if she died before arriving at twenty-one years of age, then to her children in fee, and if she died leaving no issue, before arriving at twenty-one years of age, then the property was to be distributed as though the testator had died intestate; that the said-Mary Ann Cain is still living and is an infant under twenty-one years of age * * These allegations as to the will and the coúten.ts of the same are not only, not denied, but are practically admitted by one of the plaintiff’s attorneys in an affidavit in which he states that nothing has been done in proceedings for the probate of the will for several months, and that he is informed by the attorney for Hagan, the executor who offered the will for prohate, that “ there is no apparent estate to justify the further prosecution of the proceeding,” and that he is also informed by said attorney that he is willing to have his client renounce and withdraw from the proceedings if his expenses and costs, amounting to $100, are paid, and that the attorney for Rose Flood, the other executor, also informed him that she was willing to renounce as trustee under said will, and that he declined to pay the $100. These allegations as to the existence of the will and the legal effect of it, taken in connection with the omission to deny the same, and the admission of the proceedings for the probate of the will, sufficiently establish not only the existence of the will, but the fact that the executors named therein have an interest in the real estate, and' as such should have been made parties defendant to the action. The title tendered certainly cannot be said to be reasonably free from doubt within the rule laid down in Heller v. Cohen (154 N. Y. 299). [549] But it is urged by the appellant that these trustees were made parties to the foreclosure as unknown parties, and as such the summons was duly served upon them by publication. Section 451 of the Code of Civil Procedure provides that where a plaintiff is ignorant of the name, or part of the name of a defendant, he may designate that person in the summons and in any other process in the action by a fictitious name, or by as much of his name as is known, adding a description identifying the person intended, and where the plaintiff demands judgment against an unknown person, he may designate that person as unknown, adding a description tending to identify him. It is not claimed that the trustees named in the will of Michael Cain, deceased, were unknown to the plaintiff, and the complaint is barren of any allegation from which even an inference can be drawn that the plaintiff intended to make them parties to the action and thus cut off any interest which they, as such trustees, might have in the premises covered by the mortgage sought to be foreclosed. On both grounds, therefore, I am of the opinion that the order is right and should be affirmed, with ten dollars costs and disbursements. Van Brunt, P. J., O’Brien and Ingraham, JJ., concurred; Hatch, J., dissented.