PEOPLE on rel. DEMAREST a. GRAY

PEOPLE on rel. DEMAREST a. GRAY. Supreme Court, Second District; General Term, May, 1860. Insolvency.—Publication of Advertisement.—Notice of Order.—Res Adjudícala. Where legal notice is required to be published for ten weeks before a proceeding thereon could be had, a publication though in each of ten successive weeks, is not sufficient if the time between the first publication and the proceeding taken is less than seventy days. In proceedings by an insolvent, to obtain discharge from debts, under the Revised Statutes, service of a notice without signature, of an order requiring creditors to show cause why a discharge should not be granted, which notice states an order made by another officer than the one before whom the proceedings was pending—is insufficient; and the defect is not cured by the discharge. Certiorari to the county judge of Kings county. On April 25, 1859, the defendant obtained a discharge in insolvency, by order of S. D. Morris, the county judge of Kings; and the relators now brought a certiorari to review the proceedings. The material portions of the proceedings were as follows: The petition and accompanying papers were presented by the insolvent to Judge Morris, who on the 11th day of February made the usual order that the creditors show cause on the 25th of April why a discharge should not be granted, and requiring notice thereof to be published for ten weeks in the State paper, and in two others specified. The publication which was directed to be made in the State paper, was made in the Albany Evening Journal, once a week for ten weeks, commencing on the 16th of February; in the other papers it was commenced on the 12th of February. The notice to creditors which was served personally or by mail on the various creditors, stated that “ on the 11th day of February, 1859, an order was granted by the Honorable Josiah Sutherland, Justice of the Supreme Court, on the petition of,” &c., and required the creditors “ to show cause before him at his chambers, city hall, city of Brooklyn, on,” &c. This notice was neither dated nor subscribed. On proof of such publication and service of notice, Judge Morris, on the 25th of April directed an assignment, and granted a discharge. Stanley & Langdell, for the relators. —I. No notice was published in the State paper. The Atlas and Argus was at that time the State paper, not the Evening Journal. (Weed a. Tucker, 19 N. Y. R., 422.) II. The notice was not published in the Evening Journal “ once in each week for ten weeks successively.” Between the 16th of February and the 25th of April, only sixty-eight days intervened. This is fatal. (Anon., 1 Wend., 90.) III. The notice of the order to show cause was defective and insufficient. B. F. Sawyer, for the defendant. I. The publication is in the discretion of the officer, and its sufficiency can be objected to only on the return day. II. The order for publication was made seventy-three days before the retum-day, and ten publications, one in each week were made meanwhile, which is all the State requires. III. Even if the error in the copy notice was also made in those served, the notice was still sufficient to set a man of ordinary capacity upon inquiry. IV. The officer conducting the proceedings is to be satisfied that his order has been complied with, and this may be done by oral testimony or affidavits. (3 Rev. Stat., 5th ed., pt. 3, ch. 7, art. 6, §§ 70, 71.) As to what defects in these proceedings may be deemed cured by the discharge, see Rusher a. Sherman (28 Barb., 416). [MAJORITY — By the Court.—Lott, P. J.] By the Court.—Lott, P. J. It appears that an order was made by the Hon. Samuel D. Morris, late county judge of Kings county, requiring the creditors of Morgan Gray, an insolvent debtor, to show cause before him on the 25th day of April, 1859, at his chambers in the city of Brooklyn, why an assignment of the said insolvent’s estate should not be made, and he be discharged from his debts, pursuant to the provisions of the statute for the discharge of an insolvent from his debts. ¡Notice of the order was directed by him to be published for ten weeks in the State paper, and two other designated papers, and to be served on each of the creditors, in person or by mail, as particularly stated in the order. Assuming that the publication of the notice in'the Albany Evening Journal was legal, it is shown by the proof of the publication that it was first published therein on the 16th day of February, 1859, and although the publication appears to have been made in each of ten successive weeks thereafter, yet the time between the first publication and the day appointed to show cause was only sixty-eight days, being consequently less than ten weeks. This notice was, therefore, not published for the period required by the order. Such a publication was expressly declared, in a proceeding of the same kind, to be insufficient. (Anonymous, 1 Wend., 90.) The same rule was applied in reference to a notice of sheriff’s sales of real estate, under an execution in Olcott a. Robinson (20 Barb., 148); and it has been recognized in daily practice in relation to the publication of a summons requiring defendants to appear in suits and notices of various kinds, required to be published in judicial proceedings. Another objection taken to the proceeding is equally fatal. There was no notice of the order served upon the creditors or any of them. It is true that a paper purporting to be a notice of an order made by the Honorable Josiah Sutherland, a justice of the Supreme Court, requiring the creditors to show cause, &c., at his chambers in Brooklyn, on the day designated in the order of Judge Morris, was served a sufficient time previous to that day; but even that does not appear to have been signed by the insolvent, or by any person whatever. Such a notice was not a compliance with the statute, nor with the order directing its service. It is insisted, however, that this defect was a mere irregularity, and that advantage should have been taken of it on the return-day. There might be some color for that position if the only defect had been the omission to sign the notice, provided the name of the officer before whom cause was to be shown had been correctly stated; but it has no force, from the fact that the person named as the judge therein was not the officer before whom the proceeding was pending, and had no authority in the matter. It is also insisted that, as satisfactory proof of the due publication and service of the notice was required to be given to the officer before any other proceedings were had by him, the fact that a discharge was granted is evidence that such proof was furnished, and the matter must be considered res adjudicaba. It is a sufficient answer to this to say, that it is the object of the present proceeding to review that adjudication. The ten weeks’ advertisement, and the service of the notice on the creditors, were necessary to give the officer jurisdiction to grant the discharge. Till this was done he had no authority to proceed and adjudicate'on the rights of the parties to be affected by the proceedings. This principle was decided in the matter of Underwood, an insolvent debtor (3 Cow., 59); Van Slyke a. Sheldon (9 Barb., 278); and in Stanton a. Ellis (16 Ib., 319). The proof of such advertisement and service should be affirmatively shown, and appear on the face of the proceedings, and cannot be inferred or presumed. This question was fully considered in the last case cited, and it is only necessary to refer to it as a conclusive authority to show that the discharge in question was unauthorized and void. Judgment must therefore be entered setting the discharge and other proceedings aside, with costs. Present, Lott, P. J., Emott and Brown, JJ.