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App. Div.)

First Department, March, 1910. the infant on the application of another party to the action ; from 1877 to 1889 (save for a few months in the former year) guardians could be appointed without the prior service of the summons only as to infants, residents of the State, but temporarily absent therefrom, and in any action; from 1889 to and including the present time a guardian could be appointed in any action for either nonresident or absentee infant defendants in two ways: (1) Under section 471, where process had been served either personally or by pablication; (2) under section 473, where process had not been served.

Such confusion as may apparently exist in the decisions is due only to failure to take into consideration the state of the statutes applicable to the particular case decided. Smith v. Reid (134 N. Y. 568) is anthority for the proposition that “service of process upon the infants was not essential to confer jurisdiction, and if the order was properly granted and served under the section quoted service upon the guardian was equivalent to personal service upon the infant. (Schell v. Cohen, 55 Hun, 207.) Notice in some form to an infant is essential to confer jurisdiction upon a court to bind his property. But the Legislature may prescribe that it be constructive instead of actual, and proceedings in conformity with such a statute will be valid and bind the infant. (Ingersoll v. Mangam, 84 N. Y. 622; Croghan v. Livingston, 17 id. 218; Gotendorf v. Goldschmidt, 83 id. 110.)” That decision was made under section 473 as it existed in 1878, when it applied only to resident infants temporarily absent from the State. But the opinion was delivered in 1892, when the act of 1889 had already extended the procedure to non-resident infants, and the reasoning and conclusions are equally applicable to the section in its present state. In Gotendorf v. Goldschmidt (83 N. Y. 110) it was expressly held that the true construction of subdivision 2 of section 116 of the Code of Procedure (as it existed in 1871) was that prior service of the summons was not required in partition suits, and that the notice of the provisional appointment of a guardiar. with leave to apply for one of his own selection within a time fixed, afforded sufficient protection of the infant's rights. It is true that in the case of Sloane v. Martin (145 N. Y. 534) the learned judge writing the opinion regarded the

App. Div.– Vol. CXXXVII. 14

First Department, March, 1910.

(Vol. 137. Gotendorf decision as being controlled by the provisions of the Revised Statutes, but the O'Donaghue Case (post) recognized it as being based on the Code section as well. Ingersoll v. Mangam (84 N. Y. 622) was decided when the law applied only to infants temporarily absent from the State and was an application on behalf of the infant by his mother and was not an application under section 473. Indeed, it is impossible to find a case where the order has been made under section 473 where any doubt has been expressed as to its validity. In O'Donaghue v. Smith (184 N. Y. 377) the court quoted with approval the opinion of Judge Andrews in Ingersoll v. Mangam (supra) so far as it held that there was no invariable rule defining what legal proceedings constitute due process of law conferring jurisdiction upon a court to deal with and bind the property of infants, and that as long as notice in some form, actual or constructive, had been prescribed by the Legislature to be given to the parent or guardian or other person as representing the infant, proceedings in conformity with the statute will be valid and the infant will be bound, and which opinion cited the case of Gotendorf v. Goldschmidt (supra) as authority for the proposition that under the provisions of the Revised Statutes and of the Code, applicable to that case, personal service of the summons upon an infant defendant in an action of partition was not essential to give the court jurisdiction. The cases of Platt v. Finck (60 App. Div. 315) and Schell v. Cohen (55 Hun, 207) also clearly recognize the fact that in order to proceed under section 473 it is not necessary that process should have been served upon the infant.

It follows, therefore, from all these considerations that plaintiff's proceedings under section 473 were properly taken ; that the guardian ad litem was properly appointed; that issue had been duly joined, and that the cause should not have been stricken from the calendar.

While the defect is not a jurisdictional one, attention is directed to the faulty provisions of the order directing service upon the infants. It prescribes that copies thereof be deposited “in the General Post Office, in the Borough of Manhattan, City of New York, contained in a securely closed postpaid wrapper and directed respectively to the said infant defendants at their respective places of residence according to the best information that can conveniently

App. Div.]

First Department, March, 1910. be obtained concerning the same.” This provision is entirely too vague and indefinite for safe procedure.

The place of residence of the infants should be specifically set forth in the order and direction given to mail the notices to such addresses. The affidavit upon which the order of September 1, 1909, was made set forth the places of residence of the infants, as well as the persons with whom they were then residing, and copies of the order were actually mailed to each infant in care of his or her parent at a specific address, but these addresses do not all correspond with the ones given in the moving affidavit on which the order was made. It is not disputed, however, that the places to which the copies of the orders were mailed were in fact the residences of the infants, although some of them are claimed to have been temporarily absent therefron, and the notice provided for hy the section has been actually given. It is well to suggest, nevertheless, that there may be cases in which serious difficulties might arise, unless the order specifically designates the address to which each copy of the order is to be mailed.

The order should be reversed, with ten dollars costs and disbursements, and application to strike cause from the calendar denied, with ten dollars costs.

CLARKE, McLaughlin, Laughlin and Scott, JJ., concurred. McLaughlin, J. (concnrring):

I concur in the opinion of Mr. Justice Dowling. Unless section 473 means what it plainly says, viz., that “the summons may be served by delivering a copy to the guardian so appointed," I am unable to see what can be its meaning or purpose. Where the summons has been served by publication or personally outside the State upon an infant, a guardian ad litem may be appointed as prescribed in sections 471 and 472. And if, as the respondents contend, the summons must always be served in one of these ways, section 473 is unnecessary and meaningless. In Crouter v. Crouter (133 N. Y. 55) the summons was served personally outside the State upon certain infant defendants and a guardian ad litem appointed before the necessary time had elapsed to make the service complete. It was held that the court did not have jurisdiction to make the appointment, but it is obvious that this case and the somewhat First Department, March, 1910.

[Vol. 137. similar cases cited by the respondents, where an attempt had been made to serve the summons as prescribed in section 438 and an application for the appointment of a guardian was made in accord. ance with section 471, have no application to the method of service prescribed in section 473.

On the other hand, it was expressly held in Gotendorf v. Goldschmidt (83 N. Y. 110) that under subdivision 2 of section 116 of the Code of Procedure no prior service of the summons was necessary to give jurisdiction, and the same was held in Schell v. Cohen (55 Hun, 207) as to section 473 of the Code of Civil Procedure. In the latter case the defendant derived his title to certain real property through a sale under a decree of foreclosure. In the foreclosure action the summons was served upon a guardian nisi appointed for an absent infant defendant under section 473, without any prior service upon the infant, and the court held the title good. It is true that the only objection urged seems to have been that the consent of the guardian to act was not acknowledged, but the same is nevertheless an absolute authority for the proposition that jurisdiction can be acquired without such prior service. That case was expressly approved in Smith v. Reid (134 N. Y. 568). Section 473 as it then stood applied only to a resident infant temporarily absent and had not been extended to apply, as it does now, to non-residents, but no distinction can be made upon this point and none is attempted. (See, also, Platt v. Finck, 60 App. Div. 312.)

I think that these decisions are controlling and that the question is no longer an open one. I am unable to appreciate the suggestion that the interests of the infant are not fully protected by such service. The infant becomes a ward of the court; the guardian ad litem is appointed by the court as its officer to protect his interests and the presumption is that he will do his duty.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

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First Department, March, 1910.

App. Div.)

MILDRED COHEN, Appellant, v. ConsolidATED Gas COMPANY OF

New York, Respondent.

First Department, March 11, 1910.

Gas and electricity - negligence – injury by explosion of illuminating

gas - erroneous nonsuit.

Action to recover for personal injuries caused by an explosion of illuminating

gus. It was shown that persons with badges on their bats had entered the plaintiff's apartment in the upper part of the building and had done some work in connection with the gas meter. Later in the day two men were seen in the cellar of the building with a light, and immediately after the explosion of gas which injured the plaintiff two men were found in the cellar wearing caps bearing the name of the defendant gas company. Held, that a nonsuit

was error. MCLAUGHLIN, J., dissented, with opinion.

APPEAL by the plaintiff, Mildred Cohen, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 15th day of November, 1909, upon the dismissal of the complaint by direction of the court at the close of the plaintiff's case on a trial at the New York Trial Term.

Henry A. Powell, for the appellant.

John A. Garver, for the respondent.

DOWLING, J.:

Plaintiff resides in apartments at Nos. 90-92 Allen street in the city of New York. On January 25, 1907, two men with badges on their hats came into her room about one o'clock in the afternoon, and after some minutes spent therein did something which she describes as locking the gas meter, and returning about three o'clock in the same afternoon unlocked it. At about three-thirty in the afternoon an explosion took place in the cellar of the house wherein plaintiff's apartments were located, which was of great severity, and as a result of which partitions in the cellar were blown away glass was broken thronghout the house as well as in adjoining houses in those across the street and thronghout the neighborhood. A policeman in the station house a block and one-half away describes

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