Opinion
December 1, 1911.
William Bell Wait, Jr., for the appellant.
Gilbert Ray Hawes, for the respondent.
The premises, title to which is sought to be registered, are described in the complaint with reference to a map, made in 1854 and filed in the office of the clerk or registrar of Westchester county, which gives no dimensions, distances, angles or courses. The appellant owns the premises which, according to said map, abut on the easterly side of the plaintiff's premises. It filed and served upon the respondent's attorney a notice of appearance in which it demanded a copy of the complaint, which was returned on the ground, among others, that the appellant had no interest in the action and that the notice of appearance was not interposed in good faith. The notice was then again served and again returned, whereupon, after offering to enter into a stipulation with respect to the location of the boundary lines, the appellant made the motion resulting in the order appealed from. The appellant seems to have a substantial reason for desiring to appear, but it would be premature to consider that question now, as we are of the opinion that it had an absolute right to appear. We have had occasion recently to consider the provisions of the statute on the subject ( Hawes v. U.S. Trust Co., No. 1, 142 App. Div. 789); but, as the point appears to have been left in some doubt, a further examination of the statute may be helpful. Section 379 of the Tax Law (Consol. Laws, chap. 50 [Laws of 1909, chap. 52], as amd. by Laws of 1910, chap. 627) requires the complaint to specifically name as defendants "The People of the State of New York, and also all persons who have filed any caution or cautions against the registration of such property as provided for by section three hundred and eighty-three of this chapter." Section 383 (as amd. by Laws of 1910, chap. 627) provides for the filing with the registrar of a written notice to be styled a "caution," by any person claiming to have any right or interest in or lien upon any real property or any part thereof. It also provides for the filing of a "like cautionary notice" by an abutting owner, "with the like proceedings in all respects." It is plain, therefore, that an abutter who has filed a cautionary notice is a necessary party defendant, specifically to be named, even though he claims no right or interest in or lien upon the real property, title to which is sought to be registered. Of course, in the absence of such a notice, he is not a necessary party. ( Duffy v. Shirden, 139 App. Div. 755.) The appellant claims the right to appear by virtue of section 389, which provides: "Any person interested in the property, or whose interests may be affected by the judgment in the action, whether specifically named as defendant or not, may enter his appearance and answer the complaint, within the time allowed by this article, or such further time as shall be allowed by the court, and may oppose the application for registration of the property as belonging to the plaintiff, or set up a cross-demand to have the title registered in his own behalf. In either case, he shall state particularly what his interest is and answer the material allegations of the complaint." By requiring that an abutter who has filed a cautionary notice be specifically named as a defendant, the statute plainly recognizes abutters as persons "whose interests may be affected by the judgment in the action." The appellant is, therefore, one of the class who are given an absolute right to appear. Section 385 (as amd. by Laws of 1910, chap. 627) contains, among others, the following provision: "Upon and after the issuance of the summons, the court's jurisdiction shall be the same as in an action in the Supreme Court in which no order for the commencement of the action is required; and the action shall be governed by, and shall proceed according to, the laws of this State and the rules of court, relative to such an action, as far as the same are not expressly abrogated or modified by this article." Section 386 (as amd. by Laws of 1910, chap. 627) provides for the notice of the object of action to accompany the summons, and that: "A copy of the complaint, but not of the official examiner's certificate of title or abstract or other papers filed with the complaint and application, may be demanded by the attorney of any defendant, and, if so demanded, must be served, as prescribed by section four hundred and seventy-nine of the Code of Civil Procedure." It would seem, therefore, that except as otherwise specifically provided, the procedure is similar to that of an ordinary action in the Supreme Court. The orderly practice then would be for a person who had a right to appear, but was not named as a defendant, to enter his appearance, and demand a copy of the complaint, and upon receiving a copy, to answer within the time allowed. He might oppose the application for registration, or set up a cross-demand to have title registered in himself, or, in the case of an abutter merely, as here, he might set up facts showing the interest for the protection of which he claimed the right to appear. In the case of a disputed boundary line he might state where he claimed the correct line to be, and ask that the judgment fix the boundary line accordingly. "In either case, he shall state particularly what his interest is and answer the material allegations of the complaint." That does not mean that he shall state his interest and answer the complaint before he shall be allowed to enter his appearance, but that he shall do that in the orderly course of the action when he serves his answer. Of course he could not raise issues in which he had no interest merely to make trouble for the plaintiff. ( Smith v. Martin, 142 App. Div. 60.)
The statute treats the action as one in rem, and in very broad terms provides that the judgment shall be conclusive upon all the world. It gives every person interested in the property, "or whose interests may be affected by the judgment in the action," the right to appear. It did not require an application to the court for leave to appear and, of course, did not clothe the plaintiff with the power to determine whether the interest of a person seeking to appear might be affected. After such person has been permitted in the usual way to assert his interest, the court can determine whether it exists and what is needful to protect it, and the plaintiff need not fear that his rights may be impeded or hindered by captious objections or issues raised for ulterior purposes, matters with which the court has power to deal. While, of course, a party cannot be concluded by a judgment in an action in which he had not been allowed to appear, he is not obliged to lie by and take his chances of a judgment in rem, which may raise a doubt, if it does not cast a cloud upon his title. The appellant shows a situation which justifies its presence in the action, and we are not now concerned with its motives. Indeed, it would seem to be in the plaintiff's interest to have every one asserting an interest to be protected made a party to the end that there may be no doubt as to the conclusiveness of the judgment. Expedition cannot be gained by attempting arbitrarily to exclude from the action all who seek to appear.
The order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
INGRAHAM, P.J., LAUGHLIN, CLARKE and SCOTT, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.