Imágenes de páginas
PDF
EPUB

App. Div.]

First Department, March, 1910.

of the action, unless the infant defendant, or some one in his behalf, within a number of days after the service of a copy of the order, which number of days shall be in the said order specified, shall procure to be appointed a guardian for the said infant; and the court shall give special directions in the order for the manner of the service thereof, which may be upon the infant himself, or by service upon any relation or person with whom the infant resides, and either by mail or personally upon the person so served.”

By chapter 392 of the Laws of 1863 an addition was made at the end of subdivision 2 as follows: "And in case an infant defendant, having an interest in the event of the action shall reside in any State, with which there shall not be a regular communication by mail, on such fact satisfactorily appearing to the court, the court may appoint a guardian ad litem, for such absent infant party, for the purpose of protecting the right of such infant in said action, and on such guardian ad litem, process, pleadings and notices in the action may be served, in the like manner as upon a party residing in this State."

By chapter 615 of the Laws of 1865 the clause "or is temporarily absent therefrom" was inserted after the clause "when an infant defendant resides out of this State" in the provision quoted from the act of 1862 and the italicized clause in said provision of the act of 1862 was omitted.

This was the state of the law when the new Code of Civil Procedure was enacted. (Laws of 1876, chap. 448.) Section 116 of the old Code now furnished the material for sections 470, 471 and 473 of the new. The provisions of the first subdivision of section 116 for the appointment of a guardian of an infant plaintiff became section 470; those relating to a guardian of an infant defendant generally became section 471 in its present form, except that by chapter 542 of the Laws of 1879 the word "personal" was inserted in the clause “and applies within twenty days after service of the summons," and the clause " or after service thereof is complete, as prescribed in section four hundred and forty-one of this act," was added, so as to limit the time within which an infant defendant of the age of fourteen must apply for the appointment of a guardian of his own selection, when the summons had been served without the State or by publication; section 473 was enacted in this form: "In an action

First Department, March, 1910.

[Vol. 137. for the partition of real property, or for the foreclosure of a mortgage, where an infant defendant resides without the State, or 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." This act took effect May 1, 1877. By chapter 416 of the Laws of 1877, taking effect September 1, 1877, section 473 was amended so as to read: "Where an infant defendant 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 aduit 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."

By chapter 494 of the Laws of 1889, section 473 was amended to its present form, which it ever since has retained.

Until the passage of the new Code of Civil Procedure the procedure in partition suits was regulated by the provisions of the Revised Statutes (Code Proc. § 448). So long as they were in force, they authorized the appointment of a guardian for a nonresident infant defendant without notice of any kind. (2 R. S. [4th ed.] 577; 3 id. [5th ed.] 603; Id. [6th ed.] 583; Id. [7th ed.] 2386; Laws of 1880, chap. 245.)

Thus the policy of the State in regard to the manner of notifying non-resident infant defendants under the Code has undergone many changes. From 1862 to 1877 there was required no preliminary service of process upon the infant in partition and foreclosure suits in order to obtain the appointment of a guardian for

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 publication; (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 authority 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 guardian 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 therefrom, and the notice provided for by 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. (concurring):

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

« AnteriorContinuar »