First Department, March, 1910.

[Vol. 137.

(Keogh v. McManus, 34 Hun, 521); on the contrary, her claim may now be treated in effect as making such application. Not only this, but the mortgage which she holds recites that the rents, in the event of a default, are assigned to the holder of her mortgage and under such assignment it seems to me she is also entitled to the fund.

It follows that the order appealed from should be reversed, with ten dollars costs and disbursements, and an order entered directing the receiver to pay the fund in question to the appellant.

CLARKE, LAUGHLIN, SCOTT and DOWLING, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and order directed as indicated in opinion. Settle order on notice.

JOSEPHINE W. TAYLOR, Appellant, v. ALICE W. EMMET and FANNY L. JOHNSON, Appellants, Impleaded with JOSEPH C. WHITNEY and Others, Respondents, and HENRY LAWRENCE WHITNEY and Others, Defendants.

First Department, March 11, 1910.

Infant-appointment of guardian ad litem for non-resident infant defendant-practice — two methods of procedure — prior service by publication not essential address to which orders are to be mailed should be specified.

It is not necessary that a summons be served upon a non-resident infant defendant either personally or by publication before a guardian ad litem can be appointed under the provisions of section 473 of the Code of Civil Procedure.

The Code of Civil Procedure provides two methods for procuring the appointment of a guardian ad litem for a non-resident infant defendant.

The first method under section 471 applies to both resident and non-resident infants, and in the case of the latter regulates the appointment of a guardian ad litem only where there has been service of the summons upon the infant personally or by publication.

The second method under section 473 of the Code of Civil Procedure is entirely distinct from the first, and under it a guardian ad litem for a non-resident infant defendant may be appointed although he has not been served with the summons either personally or by publication.

App. Div.]

First Department, March, 1910.

It seems, that as the court in appointing a guardian ad litem for a non-resident infant under section 473 of the Code of Civil Procedure must give specific directions in the order respecting the service thereof, it should specifically set forth the address to be placed upon notices served by mail. It is improper to direct them to be deposited in a specific post office directed to infant defendants "at their respective places of residence according to the best information that can conveniently be obtained." But, it seems, that such defect is not jurisdictional if the places to which the copies of the orders were mailed were in fact the residences of the infants and they werc received by them. History of the statutory enactments governing the appointment of guardians ad litem stated per DOWLING, J.

APPEAL by the plaintiff, Josephine W. Taylor, and the defendants, Alice W. Eminet and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of January, 1910.

The opinion delivered at Special Term is reported in Taylor v. Emmet (66 Misc. Rep. 74).

John Henry Hammond, for the appellants.

George Zabriskie, for the respondents.

DOWLING, J.:

Plaintiff and two of the defendants appeal from an order striking this cause from the calendar on the ground that certain non-resident infant defendants had not been properly served. The action is for the partition of real property, and no service of the summons has been had upon these defendants, either personally or by publication; but pursuant to the provisions of section 473 of the Code of Civil Procedure, an order was duly made (upon proof of the jurisdictional facts therein required, and after the filing of the summons, complaint and notice of pendency of action, and the commencement of the action), whereby a guardian ad litem was designated for each of the nonresident infant defendants, unless the infants or some one in their behalf should procure a guardian to be appointed as prescribed by sections 471 and 472 of the Code of Civil Procedure within ten days after mailing copies of the order to the infants as directed therein. The guardian thereupon duly qualified by filing the usual consent and affidavit, and copies of the order were mailed to the

First Department, March, 1910.

[Vol. 137. infants in the care of their parents or adult guardians. No application for the appointment of a guardian having been made on behalı of the infants, on the expiration of the prescribed time, the court made an order appointing the guardian ad litem conditioned on his filing a bond in a sum specified. This was done, whereupon the summons, which had been served on the guardian after his conditional designation, was again served upon him, and he duly served his answer.

The question presented upon this appeal is whether it is necessary that the summons should have been served upon a non-resident infant defendant, either personally or by publication, before a guardian can be appointed under the provisions of section 473, which are as follows:

"Where an infant defendant resides out of the State, or resides within the State, and is temporarily absent therefrom, the court may, in its discretion, make an order designating a person to be his guardian ad litem, unless he, or some one in his behalf, procures such a guardian to be appointed, as prescribed in the last two sections, within a specified time after service of a copy of the order. The court must give special directions in the order respecting the service thereof which may be upon the infant. The summons may be served by delivering a copy to the guardian so appointed, with like effect as where a summons is served without the State upon an adult defendant, pursuant to an order for that purpose granted as prescribed in section four hundred and thirty-eight of this act; except that the time to appear or answer is twenty days after the service of the summons exclusive of the day of service."

The language of this section is explicit, and would seem to leave no room for doubt that plaintiff's proceedings, which comply with its requirements, were sufficient. But it is claimed that section 471 creates an additional condition, which is the service of the summons upon the infant. This position is not tenable. The Code recognizes two methods for procuring the appointment of a guardian ad litem of a non-resident infant defendant.

The first method is under section 471, which applies both to resident and non-resident infants. As to the former the application may be made within a specified time after personal service, either by the infant himself if he is fourteen years of age or

App. Div.]

First Department, March, 1910.

upwards, or if he is under that age, or neglects to apply within the time limited, then the application may be made by any other party to the action, or by a relative or other friend of the infant, in which cases notice thereof must be given to his general or testamentary guardian, if he has one within the State, or, if he has none, then to the infant himself, if he is of the age of fourteen years or upwards and within the State, or if he is under that age and within the State, then to the person with whom he resides. As to non-resident infants, under section 471 the summons may be served without the State or by publication pursuant to the provisions of sections 438 to 444 inclusive, and the time within which the infant, if fourteen years of age, may apply for the appointment of a guardian begins to run from the completion of service under section 441; if he is under fourteen years of age or neglects to apply within the time fixed by the section, then the application may be made by any party to the action or by a relative or friend of the infant, but no notice of such application need be given to the infant unless he has a general or testamentary guardian within this State or is within the State when the application is made. It is clear that section 471 provides for the procedure only where the summons has been served either personally or by publication.

The second method is that prescribed by section 473 and is entirely separate and distinct from the first. The summons need not be served, either personally or by publication, to give the right to apply for the appointment of a guardian. When non-residence or temporary absence from the State of the infant defendant is shown, then the right to the order of designation arises, and the reference in section 473 to sections 471 and 472 is solely to prescribe the means to be followed by the infant in case he or some person in his behalf desires to apply for the appointment of a guardian of his own selection.

The history of this procedure demonstrates that this distinction was purposely made. Under the original Code of Procedure (Laws of 1848, chap. 379) section 96 provided for the appointment of guardians ad litem.

Subdivision 1 provided for infant plaintiffs. Subdivision 2 provided for infant defendants and directed the appointment of a guardian, “when the infant is defendant, upon the petition of the

First Department, March, 1910.

[Vol. 137. infant, if he be of the age of fourteen years and apply within twenty days after the service of the summons. If he be under the age of fourteen or neglect so to apply, then upon the petition of any other party to the action or of a relative or friend of the infant."

Upon the revision of the Code of Procedure in 1849 (Laws of 1849, chap. 438), section 96 became section 116 without change.

By the amendatory act of July 10, 1851 (Laws of 1851, chap. 479), subdivision 2 of section 116 was changed to read as follows: "When the infant is defendant, upon the application of the infant, if he be of the age of fourteen years, and apply within twenty days after the service of the summons. If he be under the age of fourteen or neglect so to apply, then upon the application of any other party to the action or of a relative or friend of the infant after notice. of such application being first given to the general or testamentary guardian of such infant if he has one; if he has none, then to the infant himself if over fourteen years of age, or, if under that age, to the person with whom such infant resides."

By chapter 392 of the Laws of 1852, subdivision 2 of section 110 was amended to read as follows: "When the infant is defendant, upon the application of the infant, if he be of the age of fourteen years, and apply within twenty days after service of the summons. If he be under the age of fourteen, or neglect so to apply, then upon the application of any other party to the action, or of a relative or friend of the infant, after notice of such application being first given to the general or testamentary guardian of such infant, if he has one within this State, if he has none, then to the infant himself if over fourteen years of age, and within the State, or if under that age, and within the State, to the person with whom such infant resides." The amendment is shown by italics.

By chapter 460 of the Laws of 1862, the first subdivision of which still applied to infant plaintiffs and the second to infant defendants, section 116 was further amended by adding at the end of subdivision 2 the following: "And in actions for the partition of real property, or for the foreclosure of a mortgage or other instrument, when an infant defendant resides out of this State, the plaintiff may apply to the court in which the action is pending, at any Special Term thereof, and will be entitled to an order designating some suitable person to be the guardian for the infant defendant, for the purposes