Opinion
Argued May 12, 1926
Decided June 1, 1926
Appeal from the Supreme Court, Appellate Division, First Department.
George P. Nicholson, Corporation Counsel ( John J. Mead of counsel), for appellant. J. Sidney Bernstein for respondents.
The action is ejectment.
Plaintiff, the city of New York, alleges that it is the owner, and entitled to the possession, of land now or formerly under water, forming part of Cromwell's creek in the borough of The Bronx. For answer, the defendant Wright sets up a final order made in proceedings under article 12 of the Real Property Law (the so-called Torrens Law, Cons. Laws, ch. 50), whereby title to the land in suit was registered in her. The city urges that the proceedings are ineffective, first, for lack of jurisdiction, and second, for fraud.
Lack of jurisdiction results, it is said, from inadequacy of notice. The statute provides for the filing of a petition (§ 379); for a reference to an official examiner who is to make a preliminary report as to the title and as to any interests therein (§ 380); and for a hearing thereafter at which adverse claimants shall have an opportunity to assert their rights (§ 385). Notice of this hearing is to be given by publication in a newspaper, and by registered letter, demanding a return, to every party to the proceeding whose address is known, and so far as possible to all other persons appearing to have any interest therein as well as to adjoining owners. Notice of the proceeding and hearing is also to be posted in a conspicuous place upon the land (§ 385). The final order when duly enrolled is to be "forever binding and conclusive upon the State of New York and all persons in the world, whether mentioned and served with the summons and said notice specifically by name, or included in the description, `all other persons, if any, having any right or interest in, or lien upon, the property affected by this action, or any part thereof'" (§ 391).
The official examiner by his preliminary report included the city of New York as one of the interested parties, describing the nature of the interest as "possible rights in abutting street." Pursuant to this report, notice by registered mail was duly transmitted to the city of New York at the office of the corporation counsel. In due course there was returned a receipt bearing the words "Office of the Corporation Counsel" with the signature thereunder "Mary Neary," described as the addressee's agent. The city made default upon the hearing, though it does not say even now that it failed to receive the notice. An order of registration was thereafter made and filed in accordance with the statute.
We see no merit in the city's argument that there is a denial of "due process" in proceedings so conducted. The grievance seems to be that the statute makes provision for service by publication in a newspaper and by transmission through the mails. There is no doubt as to the validity of such a provision when the subject-matter of the controversy is land within the State. All that is then required is that the service shall be reasonably adequate to assure notice of the proceeding to those whose rights are to be affected. The authorities to that effect are convincing and decisive ( American Land Co. v. Zeiss, 219 U.S. 47; Security Sav. Bk. v. California, 263 U.S. 282, 287; Tyler v. Ct. of Registration, 175 Mass. 71; Matter of Empire City Bank, 18 N.Y. 199, 215; Continental Nat. Bank v. Thurber, 74 Hun, 632; affd., on opinion below, 143 N.Y. 648; Campbell v. Evans, 45 N.Y. 356). "As it is indisputable that the general welfare of society is involved in the security of the titles to real estate, * * * it is obvious that the power to legislate as to such subjects inheres in the very nature of government" ( Am. Land Co. v. Zeiss, supra). The case is even clearer where the defendant, as here, is a resident of the State ( Continental Nat. Bank v. Thurber, supra), and clearer still, if possible, where it is a municipal corporation (cf. City of Trenton v. New Jersey, 262 U.S. 182, 188). Our inquiry, therefore, is limited to this: whether the provisions in respect of notice are reasonably adapted to the attainment of the end in view. The answer is not doubtful ( Tyler v. Ct. of Registration, supra). Some point is made that the signer of the return card may have signed without authority. The requirements of the law were satisfied when the notice duly registered, with due demand for a return, was deposited in the mails. The statute would be unworkable if the petitioner were under a duty to supplement the proof of mailing by proof that the signature to the receipt is authorized or genuine. The city does not even suggest that the notice did in fact miscarry. The statute was obeyed, and there was jurisdiction to proceed to judgment.
Equally without substance is the argument that the proceeding is voidable for fraud. Actual fraud is disclaimed. The argument is, however, that there were omissions or misstatements by the official examiner which are to be characterized as constructive fraud. The fraud is said to consist in the failure of the examiner to discover and report that the city had an interest in the land under water as well as in the abutting streets. But, of course, that omission in and of itself is not fraud of any kind, either actual or constructive. Conceivably the examiner may have made a mistake. There is no suggestion that the error was willful or dishonest. Certificates of registration would be worthless if their effect could be undone by evidence that an outstanding right or interest had been misapprehended or omitted. The very purpose of the proceeding is to set such controversies at rest. We add that the city was not misled or is not shown to have been misled by the description of its interest in the examiner's report. Neither in the published nor in the registered notice was there any statement that the right or claim of right to be divested was less than ownership in fee. The notice, published and registered, described the land by metes and bounds, accurately and fully. If the city claimed an interest in the whole or in any part, there was warning, ample and unequivocal, to come forward with its proofs.
The judgment should be affirmed with costs.
HISCOCK, Ch. J., POUND, McLAUGHLIN, CRANE and LEHMAN, JJ., concur; ANDREWS, J., absent.
Judgment affirmed.