Moulton v. Moulton. by the court in the exercise of its discretion. No application was made under the section, and it appears to have been ignored.* It seems to be a very remarkable feature of the statute, but we must accept it as we find it and give it its force as an existing impediment. Prior to the passage of the act of the Legislature in 1880, chapter 245, which repealed the provisions of the Revised Statutes for the partition of lands, it was held that jurisdiction over the person and property of infants was acquired by the appointment of a guardian in the first instance upon notice to such infants or their general guardian. It was considered that service of notice upon the infants was not indispensable to the exercise of discretion, and this resulted from the fact that the provisions referred to were, by section 448 of the Code, made applicable to actions for partition, so far as they could be applied. [4] In Gotendorf v. Goldschmidt (83 N. Y. 110), it was decided that personal service of the summons upon the infant was not essential to give the court jurisdiction, and thus a distinction was intimated between an action of foreclosure and an action for partition, which was subsequently more fully declared. For in the [5] case of Ingersoll v. Mangam (1 N. Y. Civ. Pro. 151), which was an action of foreclosure, it was determined that the provisions of section 416 (now, under the present Code, section 426), were applicable, and that a defendant under fourteen must be served with a summons, as therein prescribed, in order to acquire jurisdiction over him and his estate involved, and the distinction between such an action and an action for partition is referred to and stated, and it was held that the voluntary appearance of the infants by the guardian was not sufficient to confer jurisdiction, and that the order was unauthorized, inasmuch as from the failure to serve the sum *See opinion filed on reconsideration of this appeal, post, p. 433. Moulton v. Moulton. mons in the manner required by the section, the court acquired no jurisdiction over the infant or to appoint a guardian ad litem.* [*] The repeal of the provisions of the Revised Statutes already referred to placed the proceedings in partition upon the same statutory enactment which govern other actions, and therefore it is required that the service upon the infant shall be as declared by the Code. There was no order made in this case as contemplated by section 427 of the Code, and therefore the infant was not properly served with the summons, and the court acquired no jurisdiction over him.† [7] In the case of Schriver v. Schriver (12 N. Y. Weekly Dig. 328), the petition of the infant for the appointment of a guardian was verified on the 30th of April, 1880, and before the passage of the act of 1880, and the application was, therefore, properly granted in accordance with what was then the practice. It is no longer an authority upon the subject of this appeal in consequence of the change accomplished by the act of 1880.‡ *To the same effect, Bellamy v. Guhl (62 How. Pr. 460), but see Thistle v. Thistle (5 N. Y. Civ. Pro. 43), holding that appearance by guardian ad litem confers jurisdiction. +See opinion filed on reconsideration of this question, post, p. 443. The decision in Schriver v. Schriver was made upon an application by a purchaser at a sale, under a decree in partition to be relieved from his purchase. He objected to taking title on several grounds, and among others: "that the judgment and all proceedings in this action are invalid and void, by reason of the infant defendant Bertha Beall, never having been served with the summons and complaint in this action." It appeared from the papers upon which the decision was made that Bertha Beall, an infant over the age of fourteen years, having an interest in the premises which were the subject of the action, had been made a party defendant, thereto, and that she presented a petition to the Court for the appointment of the guardian ad litem, in which she stated "that she was eighteen years of age on the 26th day of January, 1880, and resided with her father, Alpheus Beall, at Cumberland in the State of Maryland; that, as she is informed an Moulton v. Moulton. [8] The result of these considerations is that the judgment under which the sale was made was invalid, and action has been commenced in this court against your petitioner, said infant, and others by William Schriver for a division and partition of certain real estates situated in the city of New York. That the summons has not been served on your petitioner, and your petitioner has no general and testamentary guardian residing in the State of New York, and no guardian ad litem has been appointed for your petitioner," and asks for appointment of Jacob Fromme, as guardian ad litem for special purpose of taking charge of said infant's interest relating to the proceedings for the partition of the premises above mentioned." This petition was duly verified, and, annexed thereto, was the consent of Jacob Fromme to act as such guardian ad litem, and an affidavit, showing his disinterestedness, competence and responsibility. The petition was dated and verified at Cumberland, Maryland, on April 20, 1880, and an order was made and entered May 8, 1880, appointing said Jacob Fromme such guardian ad litem. Service of the summons and complaint in the action was admitted by said guardian ad litem, for the infant on May 11, 1880, and a general answer on behalf of said infant was served May 13, 1880. All these proceedings, therefore, were taken before the last nine chapters, Code of Civil Procedure, which contain the provisions relating to actions for partition, went into effect, and also before chapter 245 of the Laws of 1880, repealing 2 R. S. 317, chap. 5, which included the provisions relating to proceedings for the partition of real property, took effect. The court, at special term, granted an order relieving the purchaser from his purchase, but did not file any opinion showing the ground on which this relief was granted. The order of the special term was affirmed by the general term because of objections other than that above specified. The only,portion of the general term opinion (written by DAVIS, P. J., and concurred in by DANIELS and BRADY, JJ.), referring to said objection, is the following paragraph thereof The several grounds of objection specified were First. That the judgment in the action was invalid and void by reason of the infant defendant, Bertha Beall, never having been served with the summons and complaint. It appears that the infant mentioned in this objection was a non-resident of the State, over the age of fourteen years. She filed her petition for the appointment of a guardian ad litem, upon which such, guardian ad litem was appointed, and the summons and complaint were served upon him He appeared in the action on behalf of the infant and put in an answer.' It was not necessary under such circumstances that it should appear that she had been served with the summons. The appointment of the guard Moulton v. Moulton. that the purchaser was properly relieved from any obligation to complete the purchase. For these reasons, the order appealed from must be affirmed, with $10 costs and disbursements. [9] VAN BRUNT, P. J., and DANIELS, J., concurred. Upon a reconsideration of this appeal the following supplemental opinion was filed: BRADY, J.-A reconsideration of this case has led to the conclusion that the judgment neretofore declared herein is correct, but it results from the failure of the plaintiff so to serve the summous as to acquire jurisdiction. The minor was absent from this State, and in Switzer[10] land, where it was served upon him, and without any order of publication existing.* This was unauthorized under the provisions of the Code, sections 426 and 427. The failure to apply for an order for the [11] additional service under the provisions of the last section mentioned, was for this reason unnecessary, and if made, it would not under the circumstances have corrected the error suggested. The decision herein, therefore, so far as it embraced that question, was not requisite to the disposition of the appeal. Further considera ian and his appearance and answer were quite sufficient to give the court jurisdiction. Gotendorf v, Goldsmith, 11 N. Y. Weekly Dig. 295." The court of appeals on appeal, from the order entered on the decision of the general term, sustained it in its determination (86 N. Y. 575), but did not directly refer to the question here considered. The justice writing the opinion does, however, say, “Most of the objections to the title set up by the purchaser have been answered by the learned general term," thus in effect approving of its conclusions. * The provisions of the Code relating to service of summons by publication apply equally to an infant as to an adult. Syracuse Savings Bank v. Burton (Supm. Ct., Ulster Co. Sp. T., July, 1884), 6 N. Y. Civ. Pro. 216. Vol. XIII.-28. Durant . Abendroth. tion of that question leads to the conviction, namely, [12] that when the application is made for the appointment of a guardian and it appears in the petition that the minor is fourteen years and upwards, it may very well be presumed, when no order thereto is made, that the court passing upon the application did not consider it necessary to order a further service. This arises from the language of the section, that the court may in its discretion, with or without an application therefor, make an order requiring a copy of the summons to be delivered to some person designated in the order. The judgment pronounced must be sustained, but for the reasons now stated. VAN BRUNT, P. J., concurred. DURANT, AS EXECUTOR, ETC., APPELLANT, v. ABENDROTH, IMPLEADED, ETC., RESPONDENT. SUPREME COURT, FIRST DEPARTMENT, GENERAL TERM, MARCH, 1888. S$ 3228, 3234, 3238, 3256. Costs-Right to, where costs of appeal directed to abide event-Disburse ments. Where a verdict is directed in favor of a plaintiff on certain causes of action mentioned in the complaint, and for the defendant upon other distinct causes of action contained in the same complaint, the defendant as well as the plaintiff is entitled to costs, [1,10] and their award is in no manner discretionary; [10] but costs and disbursements of an appeal from a former judgment in defendant's favor, in which he was unsuccessful and which resulted in an order directing a new trial with "costs to abide the event," should not be included in the costs so taxed by him.[9] In the supreme court, where a judgment is reversed and a new trial ordered, with "costs to abide the event of the action," the party succeeding upon the appeal is entitled to costs of the appeal if he |