
    Elizabeth Lake and Others, Appellants, v. Adam Kessel and Others, Defendants. Louis F. Gross, Purchaser, Respondent.
    
      Gsia/rdian ad litem— the appointment of one connected in business with the attorney oi' counsel of the adverse party entitles a purchases' to avoid the sale—interest on money bors'owed will not be repaid to the purchaser.
    
    The fact that, in the appointment of a guardian ad litem for the infant defendants in an action of partition, rule 49 of the General Rules of Practice, forbidding the appointment as guardian ad litem of one who is “ connected in business with the attorney or counsel of the adverse party,” was violated, constitutes an objection which entitles the purchaser to be relieved from his purchase and be repaid the amount of his bid, with interest, together with the expenses incurred by him in the examination of the title, provided the objection is taken before the passing of the title.
    The purchaser is not entitled to interest on the amount which he borrowed to enable him to complete his purchase.
    Appeal by the plaintiffs, Elizabeth Lake and others, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county Of Kings on the 12th day of J une, 1901, relieving Louis E. Gross- from his purchase at a partition sale had in the above-entitled action:
    
      Richard Cohn, for the appellants.
    
      Fred L. Gross, for the respondent.
   Goodrich, P. J.:

The respondent, Gross, at a sale in partition, became the purchaser of the premises, making a deposit of $250 with the referee. He made a motion at Special Term to be relieved from his purchase and that the referee pay him certain expenses. Among the objections assigned by him for his refusal to complete the purchase was the fact that George H. Schnizel was appointed guardian ad litem of certain infant defendants, being at the time of said appointment connected with the office of the plaintiffs’ attorneys.

Rule 49 forbids'the appointment as guardian ad Utem of one who is “ connected in business with.the attorney or counsel of the adverse party.” The record shows that Hr. Schnizel was a clerk in the office of the plaintiffs’ attorneys (though intending to dissolve his connection with them) at the date of his appointment as guardian of the infant defendants in this action. For this reason the objection to the title was well taken and it was proper that the purchaser should be relieved from his purchase and repaid the amount of his bid with interest together with his expenses of examining title.

This order should be affirmed upon the doctrine of Hecker v. Sexton (43 Hun, 593, 596). Although that was a mortgage foreclosure suit, the rule there announced seems to be equally applicable in 2>artition. In so deciding, we shall not run any risk of disturbing titles based on partition sales where the same rule may have. been violated, and no suggestion of that fact was made until after the title was passed. “ I am of the opinion,” says Macomber, J., in the case cited, that any person actually interested in a pecuniary way in having a clear and unassailable judgment record as the foundation of his title to real estate, has the right to object, if done seasonably as has been done by this purchaser, to a judicial proceeding prohibited by the general rules of practice.”

An, objection which is based on a mere irregularity may well be, and indeed often ought to be, sustained, when made in the very proceeding itself before the passing of title where the same objection might not be deemed fatal to the title in the hands of a purchaser taking without knowledge of such irregularity.

The order, however, contains an additional clause directing the payment to the purchaser of interest on $2,000 which he borrowed to enable him to complete his purchase. This clause of the order was without warrant. The order should be modified by striking out the clause in question, and as modified affirmed, without costs of this appeal to either party.

Bartlett, Hirschberg, Jerks and Sewell, JJ., concurred.

Order modified, without costs, in accordance with the opinion of Goodrich, P. J.  