Opinion
May, 1899.
Michael J. Sullivan, for executrix.
No other appearance.
An order was made under section 2787, Code Civ. Pro., directing the publication of a notice of the time and place of distribution of the proceeds of real estate sold for the payment of decedent's debts. The order provided for the publication of the notice in one paper only, the New York Law Journal, and the question submitted for decision is as to the sufficiency of the publication made in pursuance of the order to authorize the distribution of such proceeds by the court. Section 2787, Code Civ. Pro., required the notice mentioned to be published in a newspaper published in the county of the surrogate. Section 2536, Code Civ. Pro., prescribed that, in addition to such publication, where the special proceeding is instituted in this county, the notice should be published in the state paper. By section 1093 of the Consolidation Act of 1882, continued in force by section 1610 of chapter 378, Laws of 1897, every notice or advertisement in legal proceedings required by law to be published in one or more papers in the city or county of New York, was required to be published in the daily law journal designated or selected in pursuance of said section 1093, and which at the time of the making of the order in question in this proceeding, was and still is the New York Law Journal. In 1884, by chapter 133 of the laws of that year, the state paper was abolished, and by section 2 of said act, it was declared that all notices and advertisements in any and all suits, actions and special proceedings in any court or before any judge of any court of this state, now required or allowed to be published in the state paper, shall hereafter be published in such newspaper published in the county where the place of trial is designated, or wherein the papers in such special proceedings are required to be, or are, filed as shall be designated by such court or judge. It is plain from the foregoing that at the time of the enactment of the act of 1884, the notice prescribed by section 2787, Code Civ. Pro., was required to be published in the New York Law Journal by the act pursuant to which it was created, and section 2536, Code Civ. Pro., required an additional publication of the notice in the state paper, and the law of 1884, abolishing that paper, required in lieu of such publication that the notice should be published in such newspaper in this county as should be designated by the surrogate. As section 2787 of the Code, taken in connection with the provisions of the Consolidation Act, required the notice to be published in the Law Journal, it could hardly be claimed to be a compliance with the injunction of the act of 1884 for the surrogate to select or designate the same paper for the publication of the notice. An attempt to do so could, in no serious sense, be treated as a designation within the meaning of the act last mentioned. Its provisions in connection with those of the other statutes referred to evidently contemplated that the notices to which they refer, including the one in question, should be published in two papers in the manner which they prescribe. This must be done before any decree for distribution can be made in this matter.
Decreed accordingly.