
    Raymond M. Moulton, App’t, v. Henry L. Moulton, Impleaded, etc., David Duncan and another, Purchasers, Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 2, 1888.)
    
    Partition—Ini'ant—Service, how made—Code Civ. Pro., § 427.
    Though under the provisions of the Revised Statutes for the partition of lands, jurisdiction over the person and property of infants was acquired by the appointment of a guardian ad litem in the first instance, upon notice to such infants or their general guardians, yet since the repeal, in 1880, of those provisions, when the infant is fourteen years and upwards, the service in a partition action must be made as required by section 427 of the Code of Civ. Procedure, upon the infant and some person to be designated by the court in the exercise of its discretion.
    Appeal from an order denying motion to compel purchasers to complete.
    
      B. D. Kissam, for app’lt; G. S. Ormiston, for resp’ts.
   Brady, J.

The respondents purchased at a sale made pursuant to the judgment in this action, which was one for the partition of lands, but refused to complete for two reasons. The first was that Francis I. Moulton, an infant over-nineteen years of age, who was a necessary party and temporarily at school in Berne, Switzerland, on being served with a summons made application to this court in writing for the appointment of a guardian to protect his interests. In his affidavit it was stated that he had been served with a summons, that his father was dead and that he had no testamentary guardian and no guardian ad litem and asked to have his uncle appointed guardian ad litem which was done.

By section 426 of the Code, provision is made for the personal service of a summons upon a defendant if an infant under the age of fourteen years, and it is declared that it must be made by delivering a copy to him, and also to his father, mother or guardian, or if there be none within the state, to the person having the care and control of him, or with whom he resides or in whose service he is employed.

By section 427 it is provided that when the defendant is an infant of the age of fourteen years or upwards, the court may in its discretion, with or without application therefor, and in the defendant’s interest, make an order requiring a copy of the summons to be also delivered in behalf of the defendant to a person designated in the order, and that the service of the summons shall not be deemed complete until it is so delivered.

It is true that this section relates as well to a defendant who by reason of habitual drunkenness, or for any other cause, is mentally incapable adequately to protect his rights, although not judicially declared to be incompetent to manage his affairs, and has relation therefore to the second- subdivision of section 426, to which reference has been made, and which provides for service of the summons upon a person judicially declared to be incompetent to manage his affairs in consequence of lunacy, etc.

It thus appears that when the infant is fourteen years and upwards the service must be made as indicated upon the infant and some person to be designated by the court in the exercise of its discretion. No application was made under this section, and it appears to have been ignored.

It seems' to be a very remarkable feature of the statute, but we must, accept it as we find it, and give it its force as an existing impediment. Prior to the passage of the act of the legislature in 1880, chapter 245, which repealed the provisions of the Revised Statutes for the partition of lands, it was held that jurisdiction over the person and property of infants was acquired by the appointment of a guardian in the first instance upon notice to such infants or their general guardian. It was considered that service of notice upon the infants was not indispensable to the exercise of discretion, and this resulted from the fact that the provisions referred to were by section 448 of the Code made applicable to actions for partition so far as they could be applied.

In Gottenberg v. Goldschmidt it was decided that personal service of the summons upon the infant was not essential to give the court jurisdiction, and thus a distinction was intimated between an action of foreclosure and an action for partition, which was subsequently more fully declared.

For in the case of (Ingersoll v. Mangam, 84 N. Y., 622), which was an action for foreclosure, it was determined that the provisions of section 416 (now under the present Code section 426) were applicable, and that a defendant under fourteen must be served with a summons as therein prescribed in order to acquire jurisdiction over him and his estate involved, and the distinction between such an action and an action for partition is referred to and stated, and it was held that the voluntary appearance of the infants by the guardian was not sufficient to confer jurisdiction, and that the order was unauthorized, inasmuch as from the failure to serve the summons in the manner required by the section, the court acquired no jurisdiction over the infant or to appoint a guardian ad litem.

The repeal of the provisions of the Revised Statutes already referred to, placed the proceedings in partition upon the same statutory enactments which govern other actions, and, therefore, it is required that the service upon the infant shall be as declared by the Code.

There was no order made in this case as contemplated by section 427 of the Code, and therefore the infant was not properly served with the summons, and the court acquired no jurisdiction over him. In the case of Schriver v. Schriver (12 Weekly Digest, 328), the petition of the infant for the appointment of a guardian was verified on the 30th of April, 1880, and before the passage of the act of 1880 and the application therefore was properly granted in accordance with what was then the practice. It is no longer an authority upon the subject of this appeal in consequence of the charge accomplished by the act of 1880.

The result of these considerations is that the judgment under which the sale was made was invalid, and that the purchaser was properly relieved from any obligation to complete the purchase.

For these reasons the order appealed from must be affirmed, with ten dollars costs and disbursements.

Van Brunt, Oh. J., and Daniels, J., concur.  