SUPREME COURT.

#### Laura A. Sanford and others agt. Lavinia S. White and others.

*First*Department, *New York General Term,*

*Nov.,*1873.

The Code does not provide for the service of process upon unknown owners in *partition*cases. The 135th section, providing for publication, so far as it applies to unknown parties, is confined to actions for the foreclosure of mortgages.

The Revised Statutes, as amended, will apply, and are continued as applicable to partition cases by the 448th section of the Code.

The Revised Statutes *{wl.*3, *p.*605) and the act of 1843 *(p.*363) prescribe the requisite notice to be published with a description of the premises to be partitioned; and without such a description the advertisement addressed to unknown owners is an idle ceremony, and the court will not obtain jurisdiction over them.

*Before*Ingraham, *P. J.,*Brady *and*Fancher, *JJ.*

In this case the property was sold in partition. The purchaser refused to take the title on account of defects in the proceedings, and a motion was made at -the special term to compel the purchaser to complete the purchase. This was denied, and the plaintiffs appealed.

Ingraham, *P. J.*

The ground of objection is that no jurisdiction was ever acquired over those of the heirs of Kitchell Bishop and Jesse Bishop whose names were unknown. These persons were described in the complaint as “ the legal representatives of Kitchell Bishop and Jesse Bishop, deceased, whose names are unknown to the plaintiffs; and there was also an averment that their names and places of residence were wholly unknown to the plaintiffs, and they cannot ascertain the same.”

*206These proceedings were taken under the Code by an order directing a publication for three months in the state paper and in a paper published in New York. No other order of publication was made.

The provision of the 135th section of the Code, which is the only one providing for publication, does not aid this proceeding. That section, so far as it applies to unknown parties, is confined to actions for the foreclosure of mortgages, and makes no provision suitable to partition cases, nor to any other action where the parties are unknown. The 175th section, which provides for using a fictitious name where the real name is unknown, was not followed in this case; and if it had been, it would not have removed the difficulty. I think it is clear that the Code does not provide for such a case as the present one.

In the absence of any other legislation in the Code, the Revised Statutes, as amended, will apply, and are continued as applicable to partition cases by the 448th section of the Code.

The Revised Statutes, third volume, page 605, provided as follows: “ If any party having an interest in the property is unknown, the service may be by publication of the petition for three months, and the fifteenth section directs the notice to be addressed to those who are unknown, having or claiming any interest in the premises. The act of 1831, page 362, altered the publication by requiring a description of the premises to be published, and notifying all persons interested therein to appear.

The act of 1842, page 363, altered the time of publication, but did not change the character of the notice. That remains as before the passage of the act.

It is not pretended that any such notice as required by either of these statutes was published, or any description of the premises to be partitioned. The intent of the statutes was to describe the property, and thereby give notice to any who might have an interest. "Without such a description the *207advertisement addressed to unknown owners would be an idle ceremony *(see Hyatt*agt. *Pugsley,*23 *Barb.,*303).

There was no jurisdiction obtained over the persons who were unknown, and the purchaser should be relieved from his purchase.

The order should be affirmed.

Beady and Fanchee, JJ., concurred.