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Moulton o. Moulton.

MOULTON, APPELLANT, V.MOULTON, ET AL., IMPLEADED,

ETC., APPELLANTS.

DUNCAN AND ANOTHER, RESPONDENTS.

SUPREME Court, FIRST DEPARTMENT, GENERAL TERM,

MARCH, 1888.

SS 426, 427.

Infant-Service of summons upon-Action for partition.

Where, in an action for the partition of real property, an infant over four.

teen years of age, owning a part thereof, was served with the summons by delivering a copy thereof to him while he was absent from the country, attending school in Switzerland, without an order having been made, directing service by publication or without the State, and thereafter, upon his own petition setting forth that he had been served with the summons, a guardian ad litem was appointed for him who appeared and admitted service of the summons and complaint and served a general answer,--Held, that the summons had not been so served, as to give the court jurisdiction of the person of the infant; [9, 10) that a judgment directing a sale of the property in suit, and the sale thereunder, were invalid, and that a purchaser at such sale should

not be compelled to complete purchase. [8, 9] It seems to be necessary where one of the parties defendant in an action

is an infant over the age of fourteen years, that the court should ex. ercise its discretion to order or refuse to order the delivery of the summons and complaint to a disinterested third person on behalf of the infant; [1, 2] but an application for and the making of such an order will not give the court jurisdiction where the infant himself

has not been duly served. [11] It seems, that where upon an application for the appointment of a guard

ian ad litem of an infant defendant who was upwards of fourteen years of age, that fact appears in the petition and the court grants the application without directing delivery of a copy of the summons and complaint pursuant to section 427 of the Code of Civil Procedure to

Moulton v. Moulton.

a disinterested person on behalf of the infant, that it may be presumed that the court did not consider it necessary to order such further service, the making of such an order being in the discretion

of the court. [12] The rule under the Revised Statutes that in an action for partition, juris

diction was acquired of an infant by the appointment of a guardian ad litem in the first instance, upon notice to such infant or his general guardian, has been abolished by the repeal of 2 R. S., 317,

relating to proceedings for the partition of real property. [3.6 ] Gotendorf v. Goldschmidt (83 N. Y. 110); [4] Schriver v. Schriver

(12 N. Y. Weekly Digest, 328), [7], distinguished and not followed.

Ingersoll v. Mangam (1 N. Y. Civ. Pro. 151), followed. [5] (Decided March 2 and 28, 1888.)

Appeal by plaintiff and certain of the defendants from an order of special term denying motion to compel purchasers at sale under decree in action for partition to complete purchase, and relieving them therefrom.

This action was brought by one of the children of Charles Frederick Moulton, who died intestate in Paris, France, on April 18, 1887, to partition certain real property of which said decedent died seized, situate on Broadway, near Spring street, in the City of New York.

The defendants in the action were a son and daughter of the decedent, three grandchildren of the decedent, the husband of one of such grandchildren, and the wife of the plaintiff. One of the grandchildren, Francis Joseph Moulton, was an infant over fourteen years of age, and at the time of the commencement of the action was attending school at Berne, Switzerland. On August 8, 1887, an order was made ex parte appointing Joseph F. Greenough, guardian ad litem for said Francis Joseph Moulton. This order was granted upon the petition of said Francis Joseph Moulton, which, omitting title and signature, was as follows.

“To the supreme court of the State of New York:
“The petition of Francis Joseph Moulton, one of the

Moulton v. Moulton,

defendants in the above entitled action, respectfully shows to the court:

“I. That this action is brought for the partition or sale of certain real estate in the city of New York, known as No. 550 Broadway, in which premises your petitioner has an undivided twelfth interest as a son of Charles R. M. Moulton, a deceased son of Charles Frederick Moulton, deceased.

“II. That the summons in this action was served on your petitioner on the 15th day of July, 1887.

“III. That your petitioner is an infant over the age of fourteen years but under the age of twenty-one years, to wit, of the age of nineteen years, on the 2nd day of February, 1887, last, and that his father is dead and he has no testamentary guardian, and no guardian ad litem, has been appointed for him herein.

"Your petitioner therefore prays this honorable court to appoint Joseph F. Greenough, of the city of New York (who is his uncle and only next of kin in New York State, and is a competent and responsible person, and who has no interest adverse to those of your petitioner), as his guardian ad litem, to take charge of his interests in relation to the proceedings for a partition or sale of the premises above mentioned.

“Dated, 18th July 1887."

This petition was verified on July 18, 1887, at the “Republic of Switzerland, Canton of Berne," before the acting consul general, and had annexed thereto, the consent of Joseph F. Greenough, to act as the proposed guardian ad litem, and his affidavit showing that he was a competent and responsible person, verified August 6, 1887. No other proof of the service of the summons and complaint upon said infant is contained in the judgmentroll, but there is therein, an admission signed by the guardian ad litem and dated August 8, 1887, of due and

Moulton o. Moulton.

timely service on the guardian ad litem on behalf of said infant defendant, of the summons and complaint herein, which is duly acknowledged, and also an answer of said infant by his guardian ad litem setting forth “that he is an infant under the age of twenty-one years; that he is a stranger to all and singular and matters and things set forth in the complaint, ... and claims such interest in the premises in said complaint described as he is entitled to, and he submits his rights and interests in all the matters in question in this action to the protection of the court."

None of the material allegations of the complaint were put in issue by any of the answers served, and the usual proceedings were taken therein, resulting in an interlocutory judgment, decreeing a sale of the premises described in the complaint, and appointing a referee to make the sale. The premises were subsequently duly advertised for sale, pursuant to this judgment, and on October 27, 1887, were sold at auction to the respondents, David and John P. Duncan, who bid therefor the sum of $133,000, and paid on account of such purchase price, $13,300. The referee duly made his report of such sale, and, on October 29, 1887, final judgment was entered confirming the sale, directing the delivery of the referee's deeds for the premises so sold upon the payment of the balance of the purchase price, and also providing for the payment of costs and allowances of counsel, and a division of the remainder among those entitled. Thereafter, on the same day, the said purchasers declined to accept the referee's deed to the premises, on the ground that a good and marketable title thereto was not thereby conveyed, for the reasons, among others, that the court had not obtained jurisdiction in this action over the infant defendant, Francis Joseph Moulton, so as to bind him by the judgment herein.

On December 21, 1887, the plaintiff, upon an order to show cause, and affidavits, moved this court, at a special

Moulton o. Moulton.

term, for an order compelling the respondents, Duncan, to complete their purchase, and the said repondents, upon another order, to show cause and affidavits, applied for an order relieving them from their purchase, and canceling the sale, and directing the return of the deposit made by them, with interest and expenses, and an order was made denying the plaintiff's motion and granting that made by the purchasers. Thereafter, the plaintiff, and all the defendants, except one, appealed from said order.

Benjamin T. Kissam (Benjamin T. Kissam, attorney for plaintiff ; John E. Elison, attorney for all adult defendants, except one, and for guardian ad litem of infant defendant), for appellants.

An infante over fourteen years of age is sui juris after the service of a summons, and may accept service in any form or manner. Code Civ. Pro. $426, subd. 4; Thistle v. Thistle, 5 N. Y. Civ. Pro. 43. Having been served with the summons, as he states in his petition, he voluntarily appeared and petitioned this court to appoint a guardian ad litem to represent him; which was thereupon done, and he appeared for the infant and put in an answer which gave the court jurisdiction. Code Civ. Pro. $ 424, and cases below cited. When service upon the infant is required, its only effect is to limit the time within which he may apply for the appointment of a guardian. Varian v. Stevens, 2 Duer,

v 638; Gotendorf v. Goldschmidt, 83 N. Y. 110; Code Civ. Pro. $ 116, subd. 2; Code Pro. 471.

Code Pro. S 134, subd. 4 (in respect to service), is substantially re-enacted in Code of Civil Procedure, $ 426, subd. 4.

Code Pro. $ 139 (in respect to voluntary appearance), is re-enacted in Code of Civil Procedure, $ 424.

Code Pro. $ 116, subd. 2 (in respect to the appointment of a guardian), corresponds generally with section 471 of Code of Civ. Pro. Varian v. Stevens is cited and approved

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