#### Bernard Fink, Plaintiff, *v.*Karl M. Wallach, Defendant.

(Supreme Court, New York Special Term,

May, 1905.)

Code Civil Procedure—Section 442 — Service by publication—: Failure to file order with county clerk — Jurisdiction — Order nunc pro tunc erroneous—Foreclosure of mortgage — Eights of purchaser — 1 Unmarketable title.

The provision (Code Civ. Pro., § 442) that “Where service is made by publication, the summons, complaint, and order, and the papers upon which the order was made, must be filed with the clerk, on or before the day of the first publication ”, is intended as a *248substitute for personal service and, being in derogation of the common law, the statute must be strictly observed and all its provisions fully complied with before jurisdiction is obtained.

Leaving an order directing service by publication of the summons, and complaint in an action to foreclose a real estate mortgage, with the clerk of one of the twenty-one parts of the Supreme Court appointed to be held in the county of blew York, is not the “ filing with the clerk” required by the statute and an order granted *nuno pro tuno*cannot cure the jurisdictional defect.

Where at the time the judgment roll in such an action came to bo made up, it was discovered that the order directing service by publication upon two of the defendants and the papers upon which it was made were not filed in the county clerk’s office on or before the first day of publication, and such jurisdictional defect was attempted to be cured by a *nunc pro tunc*order and judgment was entered up and a sale had, the purchaser is entitled to have his contract canceled and recover his deposit made upon the sale together with the expense of searching the title, upon the ground that the title is unmarketable.

Action to rescind a contract to purchase real estate and to recover earnest money and expenses of searching title on the ground that the title is unmarketable.

Anton Gronich, for plaintiff.

Dittenhoefer, Gerber & James, for defendant.

Clarke, J.

Action to rescind a contract to purchase real estate and to recover earnest money and expenses of searching title on the ground that the title is unmarketable. Defendant’s title is derived from a referee’s deed upon foreclosure in a case entitled Wallach v. Bergschwenger, judgment filed August 6, 1896. The owner of the equity of redemption, one Johanette-Bergschwenger, and John, her husband, defendants in said foreclosure suit, were nonresidents. The summons and complaint were filed in the clerk’s office [November 19, 1895. On December 11, 1895, an order appointing a receiver of the rents and profits *pendente lite*was made and entered, and on said proceedings counsel appeared specially — and not generally — for Mrs. Bergschwenger. On February 5, 1896, a judges order, upon sufficient papers, was made directing service by publication in two newspapers *249and directing the mailing of copies of the papers to the address of said defendants in Eew Jersey, furnished by said attorney, Who had specially appeared on the receivership proceedings. The publication and the mailing were duly had. When the judgment-roll came to be made up it was discovered that the order for publication and the papers upon which it was made were not in the county clerk’s office. The attorney who had actually seen the justice sign the order and had inspected the same in the clerk’s hands in Special Term, Part II, made a search and found the papers in said Part II clerk’s office, where they had remained ever since their signature. It appears from the evidence that at that time orders of publication, though judge’s orders, were treated as court orders; that is, they were not delivered to the attorneys to be taken down to the filing and indexing room in the county clerk’s office, but were taken in charge by the clerk of the part and taken down for filing by him or his assistants. Upon these facts appearing, a court order was obtained on August 6, 1896, from Mr. Justice Stover, then sitting in Part II, which provided “ that said order made herein by Mr. Justice Miles Beach on the 5th day of February, 1896, be filed *nunc fro tunc*as- of February 5, 1896, without • prejudice to any proceedings heretofore had in this action; and it is further ordered that the clerk of this court be, and he hereby is, ordered and directed to mark the said order of Mr. Justice Miles Beach ‘ filed February 5, 1896,’ ” and the said order and papers were accordingly marked in the clerk’s' office “ filed August 6, 1896, *nunc pro tunc*as of February 5, 1896.” The judgment was entered up, the sale had and the present defendant has been in undisturbed possession ever since. The plaintiff claims that section 442 of the Code, which provides, *“*Where service is made by publication, the summons, complaint, and order, and the papers upon which the order was made, must be filed with the clerk, on or bef ore the day of the first publication ” is jurisdictional. That leaving the order with the clerk of the- part is not *“*filing with the clerk.” That a *“ nunc pro tunc*” order cannot cure a jurisdictional defect. Therefore, that judgment based thereon is void, or, at least, that so grave a question *250is raised that from either point of view the title is unmarketable and he should be relieved of his bargain and get his money back. It should be noticed that the summons and complaint had long been filed in the county clerk’s office on. the first day of publication; that the defendants had actual notice of the foreclosure proceedings, as they appeared specially on the motion for a receiver, and that copies of the papers were duly mailed to them at the address given by their attorney, and that for nine years, though their attorney had notice of this *nunc pro tunc*order, they have made no move to question the regularity of the proceedings. Was the failure to file the order with the county clerk fatal? It seems clear that leaving a paper with the clerk of one of the twenty-one parts of' the Supreme Oourt appointed to be held in this county is not “ filing with the clerk.” The object of filing with the clerk is obvious. It is to afford a safe and certain place where inquiry m,ay be made as to proceedings brought. The affidavit upon which the order to file “ *nunc pro tunc*” was granted states: *“*Deponent further says that, although the order was signed on the said 5th day of February, 1896, it was not, and has not as yet been, duly filed in the office of the Clerk of the City and County of New York.” In Rothstein v. Rothstein, 40 Misc. Rep. 101 it was held: *“*The mere receipt by the clerk having charge of the Part of the court where the justice is sitting of a paper cannot .be deemed the equivalent of filing with the county clerk, who- is the clerk of this court. Were it otherwise, a search in the county clerk’s office would not disclose the decree, and a party interested would have no means of ascertaining whether or not a decree had in fact been made.” I must hold, therefore, that leaving the paper with the clerk in charge of Special Term, Part II, was not the filing with the clerk required by the statute. As the filing of the ■order and the affidavits upon which made before the first day of publication was jurisdictional the omission so to do could not be remedied by a *“ nunc pro tunc*” order. The order was clearly erroneous. The objection to- it was jurisdictional. It was an *ex post facto*order, which assumed *251to remedy a jurisdictional defect. O’Grady v. O’Grady, 55 Hun, 40. It is clear that no retroactive amendment can cure a jurisdictional defect. Kendall v. Washburn, 14 How. Pr. 380. Ho valid judgment can be rendered against a defendant in any 'court unless such court first obtains jurisdiction of his person by some one or other of the modes prescribed by law. The provision of the statute for service by publication is intended as a substitute for personal service, and, being in derogation of the common law, the statute must be strictly observed and all its provisions fully complied with before jurisdiction is obtained. Titus v. Relyea, 8 Abb. Pr. 177. To the same effect: Cook v. Farmer, 12 Abb. Pr. 359; Wortman v. Wortman, 17 Abb. 72; Hallett v. Righters, 13 How. Pr. 43; Kendall v. Washburn, 14 id. 380; Gray v. Journal of Finance Pub. Co., 2 Misc. Rep. 260; Wilson v. Lange, 40 id. 676; Whiton v. Morning Journal Assn., 23 id. 299; Young v. Fowler, 73 Hun, 179; Ludden v. Degener, 14 App. Div. 398; Bowler v. Ennis, 46 id. 309. The latter case was an action for specific performance, and, after stating the principle above stated, proceeded: “In Stuyvesant v. Weil, 41 App. Div. 551, it was said, *‘*When it affirmatively appears that any essential step was omitted, the presumption in favor of jurisdiction is destroyed and a presumption against jurisdiction at once arises.’ ” In Greenblatt v. Herrmann, 144 N. Y. 13, it is said: “A vendee who refuses to take title upon the ground of defect therein, must point out the objection and give proof tending to establish it, or to create such a doubt in respect thereto as to render the title unmarketable. If the defect or douht is disclosed on the face of the record title, he need go no further, but if it depends upon some extrinsic fact not disclosed by the record, he must show the fact which justifies his refusal to accept the title tendered.” In the case at bar it affirmatively appears- upon the face of the record title that the order of publication and the papers upon which founded were not filed in the clerk’s office on or before the first day of publication, and that an attempt to cure that jurisdictional defect was made by the procurement of a “ *nunc pro tunc*” order. I am *252forced to the conclusion that the plaintiff is not compelled to take the title; that he is entitled to1 the relief demanded in his complaint, namely, for the cancellation of his contract and for the recovery of the deposit money, $500 and $160, the reasonable fees paid for examination of the title, with costs.

Ordered accordingly.