Opinion
November, 1913.
George Morton Levy, for plaintiff.
Albin N. Johnson, for defendant.
This is an application by the plaintiff for judgment on the pleadings. Counsel concedes that all the material allegations of fact as set forth in the pleadings may be considered as a true and complete statement thereof. The action is brought for specific performance of a certain contract for the purchase and sale of certain real estate located in Nassau county, and the defendant has refused to take title to the property contending that the title thereof is not marketable because jurisdiction was not acquired of certain defendants in an action brought affecting said premises in the year 1879. Such defendants, it appears, were served or attempted to be served by publication. Affidavits upon which the order of publication was granted seemed clearly sufficient under recent controlling authorities (Sunswick Land Co. v. Murdock, 129 A.D. 579; affd., 199 N.Y. 517), and especially in view of the fact that the same herein attacked only collaterally. See Stanton v. Eastman, 63 Misc. 385.
The title to the premises in question seems to have been the subject of previous litigation in the year 1906, when specific performance of a contract for the purchase and sale of this property was denied by this court. Said contract, however, provided and called for such a title as a certain title company therein named would insure and said title company thereafter refused to insure on account of the alleged defect referred to, and upon other grounds as well. It seems that the findings in this action were to the effect, inadvertently no doubt, that the title was unmarketable by reason and on account of the alleged defect hereinbefore referred to. It does not appear, however, that the validity of such alleged defect was litigated or necessarily raised in said action, and the refusal of the title company to insure seems to have been an absolute defense to the action. Assuming, however, that the refusal of the title company to insure was based solely upon the ground of the alleged defect in publication, still a finding or decision in said action would not in any way be decisive of the point at issue or involved, nor binding upon the parties to this action.
Said motion, therefore, for judgment on the pleadings in favor of the plaintiff must be granted, with costs, and in view of the verbal stipulation of the parties, which should be reduced to writing and filed herein, that all the facts relevant to the issues have been pleaded and are contained in the papers submitted. Leave to defendant to plead over is hereby dispensed with. Findings and judgment should be submitted in accordance with the foregoing memorandum.
Motion granted, with costs.