Opinion
February, 1932.
Present — Lazansky, P.J., Young, Scudder, Tompkins and Davis, JJ.
Order unanimously affirmed, with costs. Undoubtedly the learned official referee committed a technical error in excluding the evidence of Annie M. Head (then an owner) that she was never served with process in the action to foreclose the tax lien, through which respondent obtained title. We doubt if the exclusion of this evidence affected a substantial right of the appellant, for the reason that testimony on the subject of failure to serve a copy of the summons and complaint fifteen years ago would have little material probative force or value in view of the affidavit of service on file, the recitals in the judgment, and the lapse of time during which the respondent's deed has been on record. The witness lived in the neighborhood, had constructive knowledge of the respondent's title, and well knew that the respondent was occupying the premises, claiming title thereto, but made no effort to establish a hostile claim. Her testimony now, unsupported by other facts or circumstances, would not be sufficient to overcome the prima facie validity of the judgment. (See Ferguson v. Crawford, 86 N.Y. 609.) The respondent has been an occupant of the property for more than thirty years and claimed the title under a deed for ten years. It was only after the condemnation proceedings were begun and the property seemed to have a salable value which it had not possessed before, that the appellant obtained whatever questionable title she could and asserted ownership.