
    Schell v. Cohen.
    
      (Supreme Court, General Term, First Department.
    
    December 2, 1889.)
    1. Infancy—Guardian ad Litem Nisi—Consent.
    The provisions of Code Civil Proc. N. Y. §472, that a guardian ad litem shall not. be appointed unless his written consent, duly acknowledged, is produced to the court or judge making the appointment, does not apply to a guardian ad litem nisi, appointed under section 473, providing that where defendant is an infant resident of the state, but is temporarily absent, the court may appoint a guardian ad litem nisi, and give special directions in the order for the service thereof.
    2. Same—Amendment of Obdeb.
    Jurisdiction having been acquired by compliance with the special directions of the-court as to the service of the order, appointing a guardian ad litem nisi on the infant and his mother, the fact that the consent of the guardian ad litem afterwardsappointed was not acknowledged at the time of his appointment was a mere irregularity, which could properly be amended thereafter, nunc pro tune.
    
    Appeal from special term, New York county.
    Action by Theodore O. Schell against Jacob Cohen to recover money paid on. a contract to purchase land, together with the expense of examining title, on account of a defect in defendant’s title. Judgment was for plaintiff, and defendant appeals.
    Argued before Barrett and Daniels, JJ.
    
      John W. Pirsson, (Albert Matthews, of counsel,) for appellant. Gustave 8. Drachman, for respondent.
   Barrett, J.

The defendant’s title came through a sale under a 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 14 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, H. J. 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 inclosed in an envelope, with postage prepaid, in the post-office at the city of Hew York, directed to the infantat Old Bridge, H. J. 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 ward. The service of such an order, (properly granted, under section 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. Andbews, 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 due jurisdiction upon a court to deal with and find the property of infants, notice 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 reaffirmation, in substance, of the rule stated in- Croghan v. Livingston, 17 N. Y. 218; Gotendorf v. Goldschmidt, 83 N. Y. 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 section 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 bis 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, eitherpersonally or by publication. The court held that there was no jurisdiction to appoint a guardian ad litem, tor 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, 433. 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 inadvertence, 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. Freel, 93 N. Y. 93, it was held that the publication of a 6 instead of a 10 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 tile 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.  