
    Hannah G. I. Pearsall, an Infant, by Katherine Smith, her Guardian ad Litem, Plaintiff, v. Annie E. Rosebrook et al., Defendants.
    (Supreme Court, Queens Special Term,
    November, 1903.)
    Partition by infant — Jurisdiction — The surrogate’s authority for the infant to begin such an action may be supplied after it has been begun.
    Jurisdiction to entertain an infant’s action for partition is not derived from the Code of Civil Procedure, and its provision for written authority from the surrogate to the infant to bring the action (Code Oiv. Pro., § 1534), is only a regulation of the exercise of the jurisdiction of the Supreme Court.
    Where the action has been begun without such authority it may be supplied subsequently.
    Action for partition of real estate. Plaintiff is an infant, and the guardian was duly appointed by the Supreme Court before commencement of action. Some time after action was commenced the surrogate gave the written authority referred to in section 1534 of Code, ordering that it take effect nunc pro tunc as of a date prior to commencement of action. Motion was made on behalf of several of the defendants for dismissal of complaint, on the ground that the surrogate’s authority had not been obtained before commencement of action. On behalf of plaintiff it was contended that the surrogate could not interfere with the jurisdiction of the Supreme Court in partition, and that the Code provision was merely intended to regulate the relation of an infant to the Surrogate’s 'Court.
    George Wallace, for plaintiff.
    Charles S. Royes and G. J. Wiederhold, for defendants.
   .Smith, J.

In my opinion, jurisdiction to entertain an action for partition by an infant is not conferred by the Code of Civil Procedure. The Code provisions for the appointment of a guardian ad litem, and requiring the consent of the surrogate for the maintenance of the action by an infant plaintiff, are intended to regulate the exercise of that jurisdiction, and as it has been held that the failure to appoint a guardian ad litem affects only the regularity of the procedure (Rima v. Rossie Iron Works, 120 N. Y. 433), it follows that the omission to obtain the consent of the surrogate before the commencement of the action may be subsequently supplied.

"Motion denied.  