
    Theodore C. Schell, Resp’t, v. Jacob Cohen, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 2, 1889.)
    
    1. Jurisdiction—Guardian ad litem—Code Civ Pro., § 473.
    Where an infant defendant residing within the state is temporarily absent, and a guardian ad litem nisi is duly appointed for him under Code Civ. Pro., §473, and thereafter, upon an application in the infant’s behalf, another person is appointed guardian ad litem, the court acquires jurisdiction, although the guardian ad litem nisi did not acknowledge his consent to become such.
    3. Same.
    . Where the guardian ad litem appointed upon application made in the infant s behalf, failed to acknowledge, before his appointment, his consent thereto, Held, that this was only an irregularity, and was cured hy an order entered, hy consent of all parties to the action, nunc pro tune, inserting such acknowledgment in the record.
    Appeal from a judgment at special term in favor of the plaintiff, .adjudging the defendant’s title to certain lands in Macdougal street, in New York city, to be defective, and directing the repayment of the sum paid by plaintiff to defendant, upon the signing of the contract of purchase, together with the expense of examining the title to the lands, besides costs.
    
      Albert Matthews, for app’lt; Gustave S. Drachman, for resp’t.
   Barrett, J.

The defendant’s title came through a sale under ■& decree of foreclosure. The sole objection to this title is that the guardian ad litem, for an infant defendant failed to acknowledge his consent to become such guardian. The infant was under fourteen years of age, and he resided with his mother in this state. At the time of the commencement of the action he was temporarily .absent from the state. His temporary abode was Old Bridge, New Jersey.

Upon proof of these facts, the court made an order designating Jeff. M. Levy guardian ad litem nisi, and directing personal service of such order upon the mother. The court also directed service of the order upon the infant, by depositing a copy thereof, properly enclosed in an envelope, with postage prepaid, in the post office, at the city of New York, directed to the infant at Old Bridge, New Jersey. This deposit was properly made upon the day when the order was granted, and within two days thereafter personal service of the order was duly made upon the mother. Thereupon the court acquired jurisdiction, and the infant became its yrard.

The service of such an order, properly granted under § 473 of the Code of Civil Procedure, in the manner specially directed by the court, is equivalent, for the purpose of acquiring jurisdiction to appoint a guardian ad litem, to personal service of the summons upon a resident infant, who is not absent from the State, and his father, mother or guardian, and is also equivalent for the same purpose, to service by publication' upon a non-resident infant. Service of process upon the infant is not constitutionally required in order to confer jurisdiction. Andrews, J., in Ingersoll v. Mangam, 84 N. Y., 626, said that “ there is no invariable rule defining what legal proceedings constitute due process of law conferring jurisdiction upon a court to deal with and find the property of infants. Hotice in some form, actual or constructive, is essential, but the legislature may prescribe that such notice shall be given to the parent or guardian, or other person, as representing the infant, and proceedings in conformity with the statute in such cases will •be valid and the infant will be bound." This was a re-affirmation, in substance, of the rule stated in Croghan v. Livingston, 17 N. Y., 218; Gotendorf v. Goldschmidt, 83 id., 110, and in many other cases. The contention that jurisdiction was not acquired, because .of the fact that Levy never acknowledged a consent to become .such guardian, is without merit. Levy was not appointed a guardian ad litem for this infant, and consequently the provision of § 472 requiring the production of such acknowledged consent upon the making of the appointment is inapplicable.

There was simply a designation of Levy to be such guardian nisi and his actual appointment would not become operative unless the infant, or some one on his behalf, failed to procure the appointment of a guardian within the time specified in the order. If in the case at bar the infant or some one on his behalf had so failed, then the question would have arisen whether Levy should not have acknowledged a consent, before the designation nisi had ripened into an appointment. This is the only reasonable construction of the statute; when an appointment is made, there is an application for some particular person, and that person is required to make his acknowledged consent a part of the motion papers. When, however, a designation is made nisi, the court exercises its discretion with regard to the person; and as the applicant does not know who the court will designate he cannot, well come fortified with an acknowledged consent; which consent, it will be observed, must be “ produced to the court or judge making the appointment.”

In Ingersoll v. Mangam, supra, the infant was a non-resident and the summons was not served upon him, either personally or by publication.

The court held that there was no jurisdiction to appoint a guardian ad litem, for the reason that the statute in such cases had not been complied with. Here the infant was a resident temporarily absent from the state and the statute in such cases was strictly complied with. Jurisdiction having been acquired by compliance with the special directions of the court as to service of the order upon the infant and his mother, all subsequent irregularities were amendable. Rogers v. McLean, 34 N. Y., 536; Croghan v. Livingston, supra; Gribbon v. Freel, 93 N. Y., 93; Tobin v. Cary, 34 Hun, 432.

It appears that within the time specified in the order nisi, the infant’s mother applied for the appointment of a guardian ad litem, and upon that application Mr. John E. Ward’s consent to act was produced. This consent, by an inadvertance, was not then acknowledged, but the appointment was made. In my judgment, this was not a jurisdictional defect, but at most, a mere irregularity.

It was so held in Croghan v. Livingston, supra, with regard to the failure of a guardian ad litem in partition to file the bond required by statute, in opinion of Pratt, J., at p. 221. In Rogers v. McLean, supra, an amendment to the petition upon which the guardian was appointed, to the effect that the infant was residing with the petitioner or was under his charge or custody when the petition was originally verified, was permitted nunc pro tune; and this amendment was sustained by the court of appeals. In Gribbon v. Fred, 93 N. Y., 93, it was held that the publication of a six, instead of a ten day summons, in the marine court, was not a jurisdictional defect, but only an irregularity; and that, as the court acquired jurisdiction by the granting of a provisional remedy, an order amending the summons nunc pro tune was-properly made.

And in Tobin v. Cary, supra, the precise question here involved was decided adversely to the plaintiff’s contention. The court there also held that the order, duly executed by inserting the acknowledgment in the record, removed all objections to the title,, and the purchasers were required to complete.

The present objection seems especially trivial in view of the-fact that the summons was served upon Mr. Ward the day after his appointment, and thereupon he duly acknowledged, before a notary public, personal service of such summons. He also interposed a verified answer.

I have no doubt that the irregularity was completely cured by the order, made on consent of all parties who appeared in the foreclosure suit of March 25, 1886, permitting the proper-acknowledgment to be filed nunc pro tune, and by the execution of that order when the acknowledgment was filed and attached to-the original consent and record.

The judgment appealed from should, therefore, be reversed, and a new trial ordered, with costs to abide the event.

Daniels, J., concurs.  