
    Joseph Moscowitz et al., Respondents, v. George Homberger et al., Appellants.
    (City Court of New York,
    General Term,
    February, 1897.)
    1. Infants — Sale of real estate of.
    To make a sale of infants’ real estate valid, the rules of practice in relation to such proceedings, as well as the statutory requirements, must be strictly followed.
    2. Same — When invalid.
    A sale not made for the purpose of protecting the infant’s interest, but solely to give another a clear title to the property, is invalid, although full value was paid to the infant.
    3. Pleading — Amendment.
    The court at Trial Term has full power to conform the pleading to the proof, unless surprise is claimed.
    Exceptions ordered heard at the General Term in the first instance after verdict in favor of plaintiffs directed by the court.
    Lewis S. Goebel (Edw'ard W. S.- Johnston, of counsel), for appellants. .
    David Levehtritt, for .respondents.
   Fitzsimons, J.

The motion made by the counsel for the parties, both plaintiffs and defendants, for -a verdict in their favor respectively put the court in the place of the jury and entitled the court to determine the controverted facts.

It found that the equity in the real estate devised to St. John the Baptist Foundation by Mrs. Folsom was less than the- sum of $150,000 and its clear annual income less than the sum fixed by the statute, and, therefore, its title to such, real estate was good and marketable.

The court also determined that the defendant’s title to the, real estate owned by him was not marketable and that that was the sole reáson why the exchange in question was not consummated.

Both of these findings, we think, were justified by the evidence in this case. ' '

As to the latter finding, even the appellants’ • counsel admits that in the proceedings for the sale of the infant Ehler’s.title or interest in the property now of the defendant, that the general rules of practice relating .to proceedings for the sale of an infant’s real estate were not technically followed, but contends that these apparent irregularities were cured by the court’s consent..

We cannot agree with this contention, but think that the rules of practice as well as the statutory requirements must be strictly followed to make the sale thereunder valid.

Said rules have, in our judgment, all the force and effect of statutory enactments 'and must be adhered to.; besides this, an examination of these infant proceedings clearly shows that the purpose of the same was not to protect the interests of the infants, but they were undertaken solely for the purpose of giving the defendant herein a clear, title to the premises in question.

A sale under such circumstances and made for the purposes just mentioned is not, we think, a valid one and cannot divest the infant of her interest in the said property.

The fact that the sale was fair and that she was paid full, value for her holding does not alter the result. Weinstock v. Levison, 37 N. Y. St. Repr. 561.

For these reasons _ we think the trial justice was right in his finding that the defendant’s title was not a marketable one.

We think no error was committed by the court in granting the plaintiffs’ motion to conform the pleadings to the proof.

The sole objection made by the defendants to1 the granting of such motion was “that the court at Special Term had no power to conform pleadings to the proof.”

We have no doubt of the court’s power to do so, unless surprise is claimed, in which event it is usual to withdraw a juror and send the parties to Special Term.

No surprise being claimed in this instance, in our judgment the motion was properly granted.

We do not find any exceptions which, in our opinion, entitled the defendant to a new trial, and his exceptions are overruled and the judgment ordered on the verdict, with costs and a 5 per cent. allowance. -

Conlan and McCarthy, JJ., concur.

Exceptions overruled and judgment ordered on verdict, with costs and extra allowance.  