Stella Levy, Plaintiff, v. Mary C. McMahon, Defendant

Stella Levy, Plaintiff, v. Mary C. McMahon, Defendant. First Department, December 30, 1915. Real property — defect in title — clerical error in order of publication of summons inaction to foreclose tax lien — amendment nunc pro tunc. Where, in an action to foreclose a tax lien, the order of publication of the summons directed that the same be published in the “ New York Law Journal, published in the City of New York, Borough of Manhattan,” and in the “ Evening Telegram, published in the City of New York, Borough of Bronx,” and it appears that in the original order of publication, which was in typewriting, blank spaces had been léft for the names of the papers wherein the advertisement was to be made, after which appeared the words “ City of New York, Borough of Bronx,” and the judge in making the order struck out the word “Bronx ” and substituted the word “ Manhattan ” after the name of the Law Journal, but did not do so in the corresponding space after the name of the Evening Telegram, which is the only paper by that name in either borough, and which is published in the borough of Manhattan, and the publication has been made in the Evening Telegram, such clerical error may be amended nunc pro tunc, and does not render the title to the premises unmarketable. Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure. J. Nathan Helfat, for the plaintiff. Patrick J. McDonald, for the defendant. [MAJORITY — Dowling, J.:] Dowling, J.: Plaintiff and defendant having entered into a contract for the purchase and sale of a certain lot located in the borough of The Bronx, city of Hew York, the defendant has refused to accept the deed therefor on the ground that the title is -unmarketable because of a defect in the proceedings had in the action to foreclose a tax lien, under which the plaintiff obtained title to the premises. This defect is claimed to exist in the order of publication of the summons herein against unknown owners, which order directed that the same be published in the “Hew York Law Journal, published in the City of Hew York, Borough of Manhattan,” and in the “Evening Telegram, published in the City of Hew York, Borough of Bronx.” It appears that in the original order of publication, which was in typewriting, blank spaces had been left for the names of the papers wherein the advertisement was to be had, after which appeared the words “ City of Hew York, Borough of Bronx,” in typewriting. The judge in making the order struck out the word “Bronx’’and substituted the word “Manhattan,” after the name of the Law Journal appeared, but did not do so in the corresponding space after the name of the Evening Telegram. The publication was had in the Hew York Law Journal and in the Evening Telegram, which is the only paper by that name published in the city of Hew York, and which as a matter of fact is published in the borough of Manhattan. There is no Evening Telegram published in the borough of The Bronx, nor any paper of a similar name. The publication was completed in these two papers. On August 30,1915, the judge who signed the original order made another order amending it nunc pro tunc upon a recitation of his intention that the summons should have been published in the Hew York Law Journal and the Evening Telegram, both published in the city of Hew York, borough of Manhattan, the papers in which the publication had actually taken place. It is apparent that the error in the original order was purely a clerical one, and that the publication having taken place in the Evening Telegram, the only newspaper by that name in either borough, the court had authority to correct the error and to amend the original order nunc pro tunc. (Mishkind-Feinberg Realty Co. v. Sidorsky, 189 N. Y. 402.) Plaintiff’s title to the premises in question (this being the only objection urged against the same) was, therefore, marketable, and under the stipulation plaintiff is entitled to a judgment for specific performance, without costs. Ingraham, P. J., Laughlin, Clarke and Smith, JJ., concurred. Judgment ordered for plaintiff, without costs. Order to be settled on notice.