This case is presented by the submission of a controversy upon admitted facts under the provisions of the Code of Civil Procedure. The plaintiff seeks specific performance of a contract for the purchase and sale of *152real estate. The defendant refuses to perform Ms part of the contract upon the ground that the plaintiff cannot convey a good title. It appears from the record that he acquired his title under a foreclosure sale in which action some of the defendants therein were served under an order for publication made by the Special Term of the Supreme Court, although signed by a judge thereof.
Section 440 of the Code requires that such an order shall be made by a judge of the court or the county judge of the county where the action is triable.
It was held in Schumaker v. Crossman (12 Weekly Dig. 99) that the court at Special Term had no power to make such an order. See also the rulings in Heishon v. Knickerbocker Life Ins. Co. (77 N. Y. 278). Were it not for the facts admitted in the case, among winch it appears that the order of publication was made at Special Term, we might be inclined to disregard the caption of the order and regard it as within the requirements of section 440 of the Code. But under the rulings in Fearing v. Irwin (55 N. Y. 486), we are confined to the facts agreed upon, and can make no inferences or in any way depart from or go beyond the statement presented.
The question presented is one of jurisdiction, and as shown by the submission, one of the requirements of the statute has not been complied -with. While a title should not be disturbed upon a mere technicality, it must be shown by the record that the court had proper jurisdiction. The defendant should not be compelled to accept a questionable title, and should be relieved from the contract of September 27th, 1884.
Having reached this conclusion it is unnecessary to consider the other questions presented in the case.
Judgment is ordered in defendant’s favor.
J. F. Daly and Van Hoesen, JJ., concurred.
Judgment for defendant.