Mishkind-Feinberg Realty Co. v. Sidorsky

• Decision Date: 01 November 1907
• Citation: 189 N.Y. 402,82 N.E. 448
• Parties: MISHKIND-FEINBERG REALTY CO. v. SIDORSKY.
• Court: New York Court of Appeals Court of Appeals

189 N.Y. 402

82 N.E. 448

MISHKIND-FEINBERG REALTY CO.

v.SIDORSKY.

Court of Appeals of New York.

Nov. 1, 1907.

Appeal from Supreme Court, Appellate Division, First Department.

Submission of controversy between the Mishkind-Feinberg Realty Company and Louis Sidorsky. From a judgment of the Appellate Division in favor of defendant (see 98 N. Y. Supp. 496,111 App. Div. 578), plaintiff appeals. Affirmed.

See 100 N. Y. Supp. 714,115 App. Div. 115.

Louis Julian, for appellant.

J. A Seidman, for respondent.

CHASE, J.

A controversy exists between the parties to this action as to whether the title to certain real property is marketable. The only question relating thereto discussed in this court is as to whether the interest of one Rabinovitch, a mortgagee of said real property, was cut off by a judgment and sale in an action to foreclose a prior mortgage thereon. She was made a party defendant to the action, and, being a nonresident of the state, an application was made for an order directing the service of a summons upon her without the state or by publication. An order was granted which directed the service of the summons upon her ‘by publication thereof, in two newspapers, namely, in the New York Times, published in the Borough of Manhattan, N. Y., and the New York Law Journal, published in the Borough of Manhattan, N. Y., once a week for six successive weeks, or at the option of the plaintiff by service of said summons and notice of object of action, and a copy of this order without the state upon the defendant, Mary Rabinovitch, personally; that on or before the day of the first publication as aforesaid plaintiff deposit in the general post office in the borough of Manhattan, city, county, and state of New York, a copy of the summons and notice of object of action hereto annexed and of this order contained in a securely inclosed, postpaid wrapper, directed to the said Mary Rabinovitch, at No. 12 Fair street, Paterson, N. J.’ The order was thereafter amended by changing the name of one of the papers in which the summons was to be published.

The order and amended order conform to the directions therefor prescribed by section 440 of the Code of Civil Procedure, except that the words ‘notice of object of action’ were used therein in place of the word ‘complaint.’ No question is raised as to the sufficiency of the papers upon which the order was founded to give the judge jurisdiction to grant the same. The order, among other things, recites that it is based upon a verified complaint ‘hereto annexed.’ A notice of object of action was not annexed to the order, and the words ‘notice of object of action hereto annexed’ were used in the order by mistake and clerical error when the words ‘complaint hereto annexed’ were intended to be used therein. The summons was duly published pursuant to the order, together with a notice directed to said Rabinovitch, as follows: ‘The foregoing summons is served upon you by publication pursuant to an order of the Honorable P. Henry Dugro, a justice of the Supreme Court of the state of New York, dated the 29th day of January 1901, and filed with the complaint in the office of the clerk of the county of New York upon the 5th day of February, 1901, at the courthouse in the borough of Manhattan, N. Y.’ The summons, a notice of object of action, the order and amended order of publication, the complaint, and the affidavits upon which the order of publication was granted were duly served upon said Rabinovitch by mail. By the judgment and sale in the foreclosure action the interest of said Rabinovitch in the real property in question was foreclosed and barred if the court had jurisdiction of her as a defendant.

An action is commenced by the service of a summons (Code Civ. Proc. § 416), and by it a defendant is notified that his rights are challenged. Service of the summons-that is, notice of the commencement of the action and an opportunity by a defendant to appear and defend his rights and interests-are the important prerequisites to jurisdiction by a court. Our Code of Civil Procedure prescribes how notice must be given, and a substantial compliance with such notice is necessary. Unimportant and unessential variations from the form of notice prescribed not affecting the substantial rights of the defendant are irregularities which may be cured by amendment pursuant to the general authority of the court to amend a process, pleading, or other proceeding in furtherance of justice. Loring v. Binney, 38 Hun, 152; Stuyvesant v. Weil, 167 N. Y. 421, 60 N. E. 738,53 L. R. A. 562; Brooke v. Saylor, 44 Hun, 554; Van Wyck v. Hardy, 4 Abb. Dec. 496; Von Rhade v. Von Rhade, 2 Thompson & Cook, 491; Morrison v. National Rubber Co., 13 Civ. Proc. 233; McCoun v. N. Y. C. & H. R. R. R. Co., 50 N. Y. 176;McCully v. Heller, 66 How. Prac. 468. Where personal service is made within the state, it is not necessary to serve the complaint with the summons,...