Crouter v. Crouter

• Decision Date: 12 April 1892
• Citation: 133 N.Y. 55,30 N.E. 726
• Parties: CROUTER v. CROUTER et al.
• Court: New York Court of Appeals Court of Appeals

133 N.Y. 55

30 N.E. 726

CROUTER

v.CROUTER et al.¹

Court of Appeals of New York.

April 12, 1892.

Appeal from supreme court, general term, first department.

Action by Albert M. Crouter against Annie E. Crouter and others for partition. There was judgment of partition, and a sale thereunder, at which Ascher Weinstein and Sarah E. MacDonald were purchasers. From a judgment of the general term reversing an order granting a motion to compel the purchasers to complete the purchase, plaintiff appeals. Affirmed.

Defendants were nonresidents, and an order for service of the summons upon them by publication was granted upon an affidavit which states the following facts: That the affiant is the plaintiff, and the action is brought to partition certain real estate situated in New York city, and described in the complaint; that the three infants are all necessary parties; that they all reside at 73 Astor place, Jersey City; that deponent is personally acquainted with said defendants, who are relatives of his, as set forth in the complaint herein, and has personal knowledge of their movements; that two of the infants are over 14 and one of them in under 14; that said defendants, who are nonresidents, have no place of business in the state of New York, and frequent no place therein where a summons could be served upon them; that ‘he verily believes' a summons cannot, with due diligence, be served upon said nonresident defendants, or either of them, personally within the state.

Thomas G. Rich, C. N. Bovee, Jr., and Wm. H. Arnoux, for appellant.

Forster & Speir, for respondents.

MAYNARD, J.

The purchaser upon the partition sale in this action objects to the title offered upon three grounds: (1) That the affidavit upon which the order was granted for the service of the summons by publication upon nonresident defendants was insufficient to confer jurisdiction on the justice granting it; (2) that the bonds of the guardians ad litem do not conform to the requirements of section 1536 of the Code; and (3) that the order appointing a guardian for the nonresident infant defendants was a nullity, because made before the expiration of the period when the substituted service of the summons upon them became complete.

The first and second objections are, we think, not tenable. While the affidavit upon which the application for the order of publication was made is not as full as might be desired, it states sufficient facts to uphold the finding of the judge to whom it was presented, that the plaintiff would be unable, with due diligence, to make personal service within the state. Kennedy v. Trust Co., 101 N. Y. 487, 5 N. E. Rep. 774. The bonds are in form a substantial compliance with section 1536. They are executed to the people, and, while a separate bond for each infant might be the better practice, there is nothing in the statute imperatively requiring it.

With reference to the third objection, we have reached the conclusion that the court had no authority to appoint a guardian ad litem until it had acquired jurisdiction of the person of the infant defendants. Such seems to be the plain inference from the provisions of sections 441 and 471 of the Code, when read together. The latter section provides that, where the infant is over 14 years of age, he may apply for the appointment of a guardian, in a case like the present, within 20 days after the service of the summons is complete, as prescribed in section 441;² which does not occur where personal service out of the state is made, pursuant to an order for publication, until the expiration of a time equal to that prescribed for publication, being six full weeks from the time of service. [Section 440.] The infant defendants, therefore, could not make an application for the appointment of a guardian until 42 days had elapsed from October 31, 1890, when personal service was made without the state. Before that time the court had acquired, and could acquire, no jurisdiction of them for such a purpose; and they were not competent to waive, by any affirmative act, the restrictive provisions of the statute. In Ingersoll v. Mangam, 84 N. Y. 622, it was held by this court that a guardian ad litem can only be regularly appointed for an infant defendant after service of the summons personally, or by the substituted mode, as prescribed in certain specified cases, and that this was clearly implied by the language of section 471. Referring to the provisions of the section, the court say, (page 625:) ‘The application in both cases is to be made after the personal or substituted...