#### Adam Partenfelder, Respondent, *v.*The People of the State of New York and Others, Defendants, Impleaded with Realty Associates, Appellant.

Second Department,

June 13, 1913.

Real property — registration of title — trial of issues — failure to name parties defendant—jurisdiction—duty of court to examine certificate of title — when order for service of summons not conclusive proof that all claimants have been made parties.

Where, in an action for the registration of title to real property no persons were originally named as parties defendant, except the People of the State of New York, and “all other persons, if any, who have any right or interest in or lien upon the property affected by this action, or any part thereof,” but subsequently another party was made defendant, and the complaint alleged among other things that the plaintiff was the owner in fee simple absolute of the property described by virtue of a certain deed to him, and also by adverse possession, and the defendant interposed an answer which denied the allegations of the complaint, and particularly that plaintiff was the owner in fee simple absolute, either by virtue of the deed or by adverse possession or otherwise, and specifically alleged various defects in plaintiff’s title, the defendant, after a demand that the ordinary rules of evidence be applied, was entitled to a trial of the issues, and it was error for the court to give judgment for the plaintiff, as on a motion for judgment on the pleadings.

Where in such action it appeared from the facts stated in the official examiner’s certificate that plaintiff did not have an estate in fee simple in the property, but that several other persons had or might have some interest therein, and no facts were stated by the plaintiff respecting the existence or non-existence of such claimants, or showing any effort on his part to obtain information relating to them, the court had no jurisdiction to make an order for the issuance of a summons in which such claimants were not specifically named or appropriately described.

At the commencement of an action for the registration of the title to real property, the court is not justified in relying upon the conclusions of *463the official examiner, but is bound to carefully and critically examine the certificate, the abstract and the accompanying affidavits, and to see that, assuming all of the facts therein stated (as distinguished from mere conclusions, inferences and opinions; to be true, not only does the applicant appear to have a title free from reasonable doubt, but that every person who might have any right or interest therein or lien thereon is specifically named as a party defendant, if such name is known or can be ascertained. Unless this be done, the court has no jurisdiction to direct that such action shall be commenced, or to authorize the issuing or service of a summons therein.

The provisions of section 380 of the Real Property Law, that “ the question of the sufficiency of the proof that all such owners and claimants who can be found by diligent inquiry are duly and specifically named and made parties to the action shall be for the court,” and that “its decision that such proof is sufficient shall be shown by its making the order for the service of the summons and the commencement of the action as prescribed in this article, and such decision or order shall not be drawn in question after six months from the time when the final judgment in the action is entered,” do not apply where plaintiff’s right to registration is contested and where a final judgment in his favor is before the court for review.

There is a distinction between a ease where there is some evidence upon which the court may act, and one where there is no evidence upon which to base its determination. In the former case the court might have jurisdiction, although its decision might be erroneous, but in the latter it has no jurisdiction and its order is void.

Appeal by the defendant, the Eealty Associates, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 6th day of May, 1912, upon the decision of the court after a trial at the Kings County Special Term, and also from an amended judgment in the same action entered in said clerk’s office on the same day.

*William Bell Wait, Jr. [Henry Crofut White*with him on the brief], for the appellant.

*Gilbert Bay Hawes,*for the respondent.

Burr, J.:

This is an appeal from a judgment of the Special Term of the Supreme Court, registering the title of Adam Partenfelder to certain real property situated on the southeasterly side of Van Brunt street in the borough of Brooklyn. In *464the proceeding as originally brought the only defendant specifically named was the People of the State of New York. In addition there was a general clause describing as defendants “All other persons, if any, having any right or interest in, or lien upon the property affected by this action, or any part thereof.” Subsequently, by an order of the Special Term of this court, the Realty Associates, a domestic corporation, was made a party defendant. The propriety of the appearance of this defendant has been considered, and the order of the Special Term determining that it was a proper party to this proceeding has been affirmed. *(Partenfelder*v. *People,*148 App. Div. 921.) The complaint alleged, among other things, that plaintiff was the owner in fee simple absolute of the property described by virtue of a deed to him, made in 1879 by Edward Long and Ellen, his wife, and also by adverse possession for over thirty years. Defendant interposed an answer which generally denied substantially all of the allegations of the complaint, and particularly that plaintiff was the owner in fee simple absolute of said premises, either by virtue of the deed above referred to, by adverse possession, or otherwise. It specifically alleged facts, from which it would appear that William L. Haskins, the Red Hook Building Company, John Long, Ellen Welsh, Margaret Long and James Long, or their heirs at law or successors in interest, had or might have some interest in or lien upon the property sought to be registered, or some part thereof. It further alleged that as to a small strip of ground on the westerly side of said premises, the same was subject to an easement in favor of the owner of the adjoining property, and that defendant had a lien thereon by way of mortgage. Various other defects in said title were specifically alleged, none of which it is necessary for us to consider at the present time. Thereafter plaintiff made a motion at a Special Term of this court for “final judgment and decree confirming the title of plaintiff to the premises described in the complaint, as an estate in fee simple absolute, in accordance with the report of the Official Examiner, annexed to the complaint.” This motion was based upon the following papers: An order for the issuance of a summons directed to the People of the State of New York and “all other persons, if any, who have *465any right or interest in, or lien upon the property affected by this action or any part thereof; ” an order directing that service of said summons and a notice of the object of the action be made by publication thereof once a week for four successive weeks in the New York *Law*Journal; an affidavit that no previous application had been made for the issuance, service and publication of the summons and complaint; an examiner’s certificate of title, with a paper attached thereto termed Exhibit A, which purports to contain a summary statement of the returns upon certain searches made in various offices; an affidavit of the official examiner to the effect that he has personally examined the title and made the said certificate, and that the statements contained in said certificate are true in every particular to the best of his knowledge and belief; three affidavits of the plaintiff, one relating to the names of owners of adjoining-premises, one relating to the payment of a mortgage referred to in the examiner’s certificate, and one relating to his possession of the premises; a copy of a survey, verified as to its correctness by a city surveyor; an affidavit of publication of the summons and notice of object of action; the amended answer of defendant Realty Associates; and an affidavit of the attorney for plaintiff, which contained a history of the proceedings in the action and was among other things intended to be used as a basis for an application for an extra allowance in addition to costs. When the matter came on for a hearing, said defendant demanded that the ordinary rules of evidence should apply to the matters controverted by the answer in this action. Not only was this demand ignored, but, without taking any proof or making any decision containing either findings of fact or conclusions of law, the court proceeded as if on a motion for judgment on the pleadings to direct final judgment, registering plaintiff’s title as one in fee simple absolute, subject to an encroachment on the west and also on the south, the extent of which encroachment in neither case is accurately defined. From this judgment defendant Realty Associates appeals.

We think that the judgment must be reversed.

*First.*Defendant was entitled to a trial of the issues. The Real Property Law contains no express provision relating to *466the method of the trial of issues in such a proceeding as this, except that they must he. tried either at a Special Term of this court or under certain conditions by a jury (§ 371), nor does it in precise words authorize any summary motion for judgment on the pleadings. It does contain a general provision that “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 ” (§ 385). The application here made cannot be sustained as an application for judgment upon the answer as frivolous (Code Civ. Proc. § 537), nor does the notice of motion seek relief upon that ground. Such an application must be determined by an inspection of the pleading alone, argument to demonstrate the insufficiency of the pleading must be unnecessary, and the practice of interposing affidavits for or against the pleading cannot be sanctioned. *(Dancel*v. *Goodyear Shoe Machinery Co.,*67 App. Div. 498.) Neither can it be sustained as an application for judgment on the pleadings. (Code Civ. Proc. § 547.) Such motion cannot be granted at plaintiff’s instance where the answer raises any material issue of fact as to which evidence must be taken to warrant a judgment, and on such a motion nothing but the pleadings can be considered. *(Godwin*v. *Liberty-Nassau Building Co.,*144 App. Div. 164.)

*Second.*The difficulty in the way of sustaining this judgment is far graver than that which arises in connection with the practice pursued. The papers and proceedings upon which is based the order directing that the action to register such title should be commenced, and authorizing the issuance of the summons in the form adopted and allowing its service by publication, are fatally defective, and the court did not acquire jurisdiction to make the same. The examiner’s certificate of title shows, among other things, that in 1837 a conveyance was made to one William L. Haskins, which purported to convey, with other property, two undivided third parts of the premises in question. The next instrument in the chain of title set forth *467in said certificate is a conveyance by Cyrus P. Smith, master in chancery, to John Dikeman of the entire premises. This conveyance, made in 1840, contains a recital of a decree of the Court of Chancery, but there is nothing to show the nature of said action, the jurisdiction of the court over the subject-matter thereof, or of the parties defendant therein, and, so far as does appear, Haskins was not a party to such action, nor is there anything to indicate how, if at all, the interest of Has-kins or of those claiming under him as vested in him by the deed above recited, was divested, if at all. The said certificate further shows that in 1854 John Dikeman purported to convey the premises in question to John Long. This conveyance was made upon an express condition (not a covenant) as to the location and character of the buildings to be erected thereon. There is nothing to indicate that this condition has ever been released by the grantor or his heirs or successors in interest. The next instrument referred to in the examiner’s certificate of title is a deed made in 1864 from Ellen Long and Margaret Long to Edward Long. There is no evidence of John Long’s death, testate or intestate, nor as to his heirs at law, other tba.n a recital in said deed that he had died intestate seized of the lot in question, leaving the parties grantors and grantee, together with one Daniel B. Long, his only heirs at law. In October of the same year it appears that a quitelaim deed was executed from Daniel B. Long to Edward Long. The certificate of title also shows that in 1875 Edward Long executed a deed purporting to convey the premises in question to Ellen Welsh, Margaret Long and James Long, reserving to himself a fife estate in said premises. The habendum in said deed is to the parties of the second part *“*as tenants in common during their respective lives and at the death of either of them to the said James Long his heirs and assigns as to the share or undivided half of the one so dying to his and their own proper use, benefit and behoof forever.” The concluding deed recited in said certificate is a deed from Edward Long and wife to the plaintiff. There is nothing to -indicate how the title of Ellen Welsh, Margaret Long and James Long to said premises was divested, if at all. Prom the facts stated in said certificate it would appear affirmatively that plaintiff, so far from having an estate in fee simple *468in said premises, had at the most only an estate for the life of Edward Long, and that several other persons had or might have some interest therein. The Real Property Law (Oonsol. Laws, chap. 50 [Laws of 1909, chap. 52], § 379, as amd. by Laws of 1910, chap. 627) requires that the complaint and the summons shall *“*name as parties to the action all persons having or claiming any right or interest in or lien upon the property, or any part thereof, as shown by the examiner’s certificate of title.” It further requires that the complaint shall contain, in addition to other proper allegations, “ The names and post-office addresses of the defendants (and whether or not any of them are .infants or otherwise incapacitated) as far as known or reasonably ascertainable; [and] a description of those whose names are unknown, as prescribed by section four hundred and fifty-one of the Code of Civil Procedure. ” This is such a description as will identify the defendants intended but not specifically named. If there are any other possible owners and claimants of the property, or of any right or interest in or lien upon the property or any part thereof, then and then only may these defendants be described by the general clause *“*all other persons, if any, having any right or interest in, or lien upon, the property affected by this action, or any part thereof.” (Id. §§ 379, 380.) From the examiner’s certificate of title it appears affirmatively that at least these persons should have been specifically named or else described as required by section 451 of the Code as parties defendant in the complaint and the summons: William L. Haskins or his heirs at law or successors in interest, John Dikeman or his heirs at law or successors in interest, John Long or his heirs at law or successors in interest, Ellen Welsh, Margaret Long and John Long. Not only were none of these persons named or described in the summons and complaint, but there is not a single fact stated respecting then existence or non-existence, nor any fact showing the slightest effort to obtain information respecting them. It is true that the complaint contains an allegation “ that there are no other persons in existence, except as hereinafter stated, who own or claim or may claim said property, or have, or claim, or may have or claim any right or interest in or lien upon the same or any part thereof.” There is nothing “hereinafter stated” except *469that any possible owner or claimant is designated under the general words above referred to, and “ that after diligent inquiry they remain unknown to the plaintiff and the plaintiff is unable to ascertain whether any of them are, • or are not, residents of this State.” These are not statements of a fact, but a conclusion of law. It is not contained in the examiner’s certificate of title, and the conclusion is contradicted by the statements • therein contained, which is made a part of said complaint. The examiner certifies, it is true, that the title to the property in question is vested in plaintiff, but this is a mere expression of opinion and not the statement of a fact. The statements of fact therein contained are to the contrary. The Eeal Property Law requires that, after specifically naming or describing as defendants those persons above referred to, as to actual or possible owners or claimants of the property sought to be registered, not known or not found, the examiner’s certificate “shall state fully what search and efforts have been made to find them” (§ 380), and “By the statements of fact contained in said certificate of title, or by separate accompanying affidavits, or by any other or additional evidence, if necessary, stating the facts, or by any or all of these, sufficient facts must be shown to satisfy the court that all owners and claimants of the property sought to be registered, or of any right or interest in or lien upon the same or any part thereof, who could be found by diligent inquiry are duly and *specifically*named and made parties to the action.” (Id. § 380.) The duty of the court at this stage of the proceeding is not perfunctory. It is not justified in relying upon the conclusions of the official examiner with respect to these matters. (Id. § 385.) To give the court authority to act, facts must be stated clearly, definitely and explicitly, and not inferences, conclusions or opinions. It is particularly important that before authorizing the commencement of an action the court should see to it that every possible owner or claimant to the property, whose name and address are known or readily ascertainable, and every such class of owners or claimants whose names are unknown but who can be described and designated, shall be specifically named in the complaint and the summons, or properly designated therein, and shall be personally served with *470said summons, unless the court is satisfied by proof of the facts that the plaintiff has been or will be unable with due diligence to make personal service thereof. (Id. § 385, as amd. *supra.)*A reason for the greatest caution at this stage of the proceeding arises from the fact that under our statute the official examiner is not an impartial officer of the court, as is the case in some other jurisdictions, but is in every instance the employee of the party seeking registration of his title. The- purpose of this act is not to permit the registration of defective or imperfect titles. On the contrary, it is made the duty of the court to see to it that no judgment of registration shall be made unless the court is satisfied that the title to be registered shall be “free from reasonable doubt.” (Id. §391.) A most onerous and responsible duty is imposed upon the court at the very threshold of the proceedings to carefully and critically examine the certificate, the abstract and the accompanying affidavits, and to see to it that assuming all of the facts therein stated (as distinguished from mere conclusions, inferences and opinions) to be true, not only does the applicant appear to have a title free from reasonable doubt, but that every person who might have any right or interest therein or lien thereon is specifically named as a party defendant, if such name is known or can be ascertained. Unless this is done, the court is without jurisdiction to direct that an action to register such title shall be commenced, or to authorize the issuing or service of a summons therein. But it may be urged that “ the question of the sufficiency of the proof that all such owners and claimants who could be found by diligent inquiry are duly and specifically named and made parties to the action shall be for the court,” and that “its decision that such proof is sufficient shall be shown by its making the order for the service of the summons and the commencement of the action as prescribed in this article, and such decision or order shall not be drawn in question after six months from the time when the final judgment in the action is entered.” (Id. § 380, as amd. *supra.)*As an order was made by the court permitting the commencement of the action and the issuance of the summons in the form above described, and as final judgment was entered on May 6, 1912, is this question longer open for discussion? This contention is *471sufficiently answered when we say that of necessity this statute of repose can have no application to a case where plaintiff’s right to registration is contested, and where a final judgment in his favor is before this court for review. But beyond that, there is a distinction between a case where there is some evidence upon which the court may act, although as to the weight and sufficiency of it minds may differ, and a case where there is absolutely no evidence upon which to base judicial determination. In the former case the court might have jurisdiction, though its decision upon the facts might be erroneous. In the latter case it has no jurisdiction, and its order is absolutely void. *(Kennedy*v. *Lamb,*182 N. Y. 228; *McCracken*v. *Flanagan,*127 id. 493; *Seidenburg*v. *Pesce,*140 App. Div. 232; *Blute*v. *Fellowes,*143 id. 825.) The papers upon which the order directing the commencement of this action and the issuance of the summons was based, although affirmatively showing persons who are necessary and proper persons to be specifically named in the complaint and in the said summons, is absolutely silent as to any effort made to ascertain anything with regard to either of these persons, with the exception of Edward Long, Margaret Long, James Long and Ellen Welsh. As to these the statement of the official examiner is as follows: “Edward Long * * * granted life estates to Ellen Welsh and Margaret Long, with the remainder to James Long, and retained a life estate to himself. We find, further, that notwithstanding the above, Edward Long and his wife made a conveyance of said property to Adam Partenfelder by deed recorded in Liber 1356, at page 501, on May 31st, 1819. On information and belief, I am satisfied that-the whereabouts of Edward Long, Margaret Long, James Long and Ellen Welsh cannot be ascertained, nor in fact can it be ascertained whether either of them is still alive.” There is no suggestion as to the sources of his information, the grounds of his belief, nor any fact from which a court could determine that each of the persons above named was not at the present time living, residents of this city and within the jurisdiction of this court. Upon such a state of facts the court was without jurisdiction to make any order for the issuance of a summons in which all of the parties above referred to were not specific*472ally named or appropriately described, and said order and all proceedings subsequent thereto were absolutely void.

There are other grounds of attack upon this judgment raised by the appellant. In view of the conclusion which we have reached, it is unnecessary to consider them.

The judgment appealed from must be reversed, with costs of this appeal, and the proceedings dismissed, with costs.

Jenks, P. J., Rich and Stapleton, JJ., concurred; Carr, J., not voting.

Judgment reversed, with costs of this appeal, and proceedings dismissed, with costs.