(77 Hun, 249.)

#### SLOANE v. MARTIN.

(Supreme Court, General Term, First Department

April 13, 1894.)

Writs—Presumption oe Service.

The record of an action to subject land to the payment of the deceased owner’s debts presumptively establishes service of process on the infant heirs of decedent where it shows an appearance by a solicitor for the *333widow and infant children of decedent; that the widow, as natural guardian of the children, filed a petition reciting their appearance in the suit, and asking the appointment of a guardian ad litem; and that a guardian ad litem was appointed, and filed an answer.

Appeal from judgment on report of referee.

Action by Matilda A. Sloane, as executrix, against William R. H. Martin. From a judgment in favor of plaintiff (24 N. Y. Supp. 661), defendant appeals. Affirmed.

Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.

William G. Choate, for appellant.

M. B. Maclay, for respondent.

PARKER, J.

The judgment appealed from requires the defendant to perform a certain contract, by which he had agreed to pay $650,000 for certain lands situated on Broadway and Thirty-Second street, in the city of New York. Defendant Martin’s objection to a completion of the contract of purchase was based on an alleged defect of title. The facts which persuaded him that his objection was well taken may be briefly stated as follows: The death of Ezra R. Goodridge, in August, 1867, dissolved the Arm of Ezra R. Goodridge & Co.; and immediately afterwards certain foreign creditors commenced actions in the supreme court of this state, in which actions warrants of attachment against the firm property were issued, and levied upon its real property, including the property in question, of which Ezra R. Goodridge, individually, was the apparent owner. In January, 1868, such creditors filed a bill in equity in the circuit court of the United States for the southern district of New York, making the necessary persons parties, and including, among others, two children of Ezra R. Good-ridge, aged, respectively, two and three years. It was alleged in the bill that the premises in controversy were in fact partnership property, although the record title was in Ezra R. Goodridge, individually, at the time of his death. The bill was filed January 13, 1868, and on the same day a subpoena was issued; but there is no entry in the docket of the clerk (which contains all other proper and necessary entries) of a return of the subpoena, nor do the papers in the case on file in the clerk’s office contain the subpoena, or any return of its service. The record and entries in the docket show that on February 10, 1868, the appearance of F. A. Lane, as solicitor for Mary R. Goodridge and the infant children of Ezra R. Goodridge, was filed and entered, and that on the day following the same infants, by their mother, as natural guardian, filed a petition, in which was recited, among other things, the filing of the bill against them; their appearance; that they were under the age of 14 years; and that they were advised that Richard E. Stilwell would be a proper person to be appointed their guardian to defend the suit, and praying his assignment for that purpose. The petition was verified by the mother and the solicitor of the infants, and on the same day, by an order duly filed and entered, Stilwell was appointed the guardian of such *334infants. He put in the usual guardian’s answer. A trial of the issues was had, resulting in an adjudication that the property had been purchased with partnership funds. The decree appointed a receiver; directed a conveyance of the property to him by the widow of Ezra B. Goodridge and the guardian ad litem of the infants. The decree was complied with in such respects, and such proceedings were thereafter had, in pursuance thereof, and of the further order of the court, as resulted in a conveyance of the premises to J. Pierpont Morgan May 23,1872.

The statement of facts which we have made, while very brief, is sufficient to call attention to the questions involved. The referee, in a very careful and learned opinion,1 discusses two propositions: First, whether the service of the subpoena was a jurisdictional fact; and, second, assuming it to be jurisdictional, whether the fact of service of the subpoena was presumptively established by the judgment record. The second question he answers—and, we think, rightly—in the affirmative; and his further conclusion that such presumption has not been overcome by anything appearing in the record, or by any competent extrinsic proof, seems to us well founded. The judgment should be affirmed, upon the opinion of the referee, in so far as it discusses the second proposition to which we have referred. The judgment should be affirmed, with costs. All concur.

1

24 N. Y. Supp. 661.