Olcott v. Robinson (21 N.Y. 150, 1860)

Davies, J.

The Revised Statutes require (2 R. S. 368, § 36) that the time and place of holding any sale of real estate, pursuant to any execution, shall he publicly advertised previously for six weeks successively, as follows: 1. A written or printed-notice thereof shall be fastened up in three public places in the town where such real estate shall be sold: 2. A copy of such notice shall be printed, once in each week, in a newspapef *of such county, if there be one. It is conceded, that the formalities required by the first subdivision of this section have been complied with, and that the time and place of the sale, so far as prescribed by it, had been advertised for six weeks successively, previously to the day of sale. The notice was fastened up on Tuesday, the 26th of M irch, and continued so fastened up, until the day of sale, Wednesday, May 8th. It was, therefore, so far as the notice fastened up was concerned, publicly advetised for six weeks successively previously to the sale.

The second subdivision, it will be observed, requires a publication in the newspaper, of a copy of the notice posted up; clearly, therefore, implying that the posting or fastening up is to precede the publication. It is a copy of the notice fastened up, which is to be printed once in each week, in a newspaper of the county, for six weeks previously to the sale. There is no doubt, that all the formalities of the first subdivision were strictly complied with; and the notice thus posted up was the original notice of sale; it is thus expressly declared by statute. .It was put up at the right time, and continued up for the right time; no law required it to be put up sooner. A copy of the notice thus fastened up is to be printed in a newspaper, for six Aveeks, once in each week. Can it, with truth, be said, that the statute requires the copy to be printed, before the original is in existance? It is a perversion of terms to say so. The original is first to be fastened up, and to be put up for the time prior to the sale, required by statute, then the copy is to be printed in the newspaper. It is not correct to say, that the copy of a notice, the original of which had no existance, until Tuesday, March 26th, should have been published in the newspaper of Saturday, March 23d. The copy could not be prepared for publication, until the original had existence, and then it was printed in the first publication thereafter, and printed once in each week, for the six weeks successively intervening between the fastening up of the original notice and the day of sale. It seems to me, that this is not only a strict compliance with the spirit of the provisions of the statute, but with its letter also.

The defendant relies on the authority of an anonymous case *(1 Wend. 90). This seems to have been submitted to the judges of the supreme court by a commissioner, for their advice, and decided without argument. The provision of the Revised Laws, to which the case referred, was. that an 'insolvent seeking a discharge should cause an advertisement to be published for six weeks successively, specifying the time and place for his creditors to show cause why an assignment should not be made by the insolvent, and he bo discharged. It was stated to the judges of the supreme court in that case, that it did not appear that full six weeks’ notice to the creditors had been given. The affidavit of publication set forth that the advertisement or notice had been regularly published in the newspaper directed, once in each week, for six weeks successively, commencing on a certain day. Woodworth, J., said, the proof of publication was undoubtedly defective; the affidavit might literally be true, and yet only thirty days’ notice be given; the statute requires the advertisement or notice to the creditors to show cause, to be published for six weeks successively; that is, during forty-two days.

The authority of this case has been greatly impaired by the decision of the supreme court of the seventh district in Sheldon v. Wright (7 Barb. 39). In that case, the provision of the statute under consideration, was that authorizing a surrogate to make an order, directing all persons interested in the estate of a deceased person to show cause, on a day to be named in such order, why so much of the real estate whereof such testator or intestate died seised, should not be sold, as would be sufficient to pay his debts, and the statute further provided, that such order should immediately thereafter be published for four weeks successively, in two or more public newspapers printed in this state. (1 Rev. Laws, 450, § 23). The order in that case was made on the 6th of September 1826, requiring the cause to be shown before the surrogate on the 19th of October following. The order was published in the “Free Press,” a newspaper printed in Auburn, Cayuga county, once in each week, for four weeks successively, commencing on the 20th day of September 1826, and in the “ Cayuga Patriot,” printed in the same place, once in *each week, for the same number of weeks, commencing on the 27th of September 1826. Welles, J., in delivering the opinion of the court, says—“ I have no doubt whatever, that it is essential, in order to give the surrogate jurisdiction of the persons of the heirs, that this provision of the statute should be strictly complied with; it is the only process to bring them into court, and without it, they are without their day in court. And I think that notice for the full time required by the statute is equally indispensable ; that short notice would be as no notice. "x" * * It is claimed, that the notice, so far as one of the papers was concerned (the Cayuga Patriot), ivas not published four weeks: that the first publication, which was on the 27th day of September, was less than four weeks before the 19th day of October, when the parties were required to show cause,