Taylor v. Emmet

McLaughlin, J. (concurring):

I concur in the opinion of Mr. Justice Dowling. Unless section 473 means what it plainly says, viz., that “ the summons may be served by delivering a copy to the guardian so appointed,” I am unable to see what can be its meaning or purpose. Where the summons has been served by publication or personally outside the State upon an infant, a guardian ad litem may be appointed as prescribed in sections 471 and 472. And if, as the respondents contend, the summons must always be served in one of these ways, section 473 is unnecessary and meaningless. In Crouter v. Crouter (133 N. Y. 55) the summons was served personally outside the State upon certain infant defendants and a guardian ad litem'appointed before the necessary time had elapsed to make the service complete. It was held that the court did not have jurisdiction to make the appointment, but it is obvious that this case and the somewhat *212similar cases cited by the respondents, where an attempt had been made to serve the summons as prescribed in section 438 and an application for the appointment of a guardian was made in accordance with section 471, have no application to the method of service prescribed in section 473.

On the other hand, it was expressly held in Gotendorf v. Goldschmidt (83 N. Y. 110) that under, subdivision 2 of section 116 of the Code of Procedure no prior service of the summons was necessary to give jurisdiction, and the same was held in Schell v. Cohen (55 Hun, 207) as to section.473 of the Code of Civil Procedure. In the latter ease the defendant derived his title-to certain real property through a sale under a decree of foreclosure. In the foreclosure action the summons was served upon a guardian nisi appointed for an absent infant defendant under section 473, without any prior service upon the infant, and the court held the title good. It is true that the only objection urged seems to have been that the consent of the guardian to act was not acknowledged, but the same is nevertheless an absolute authority for the proposition that jurisdiction can be acquired without such prior service. That case was expressly approved in Smith v. Reid (134 N. Y. 568). Section 473 as it then stood applied only to a resident infant temporarily absent and had not been extended to apply, as it does now, to non-residents, but no distinction can be made upon this point and none is attempted. (See, also, Platt v. Finck, 60 App. Div. 312.)

I think that these decisions are controlling and that the question is no longer an open one. I am unable to appreciate the suggestion that the interests of the infant are not .fully protected by such service. The infant becomes a ward of the court; the guardian ad litem is appointed by the court as its officer to protect his interests and the presumption is that he will do his duty.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars Costs.