Rosenfeld v. Miller

131 A.D. 282, 115 N.Y.S. 692, 1909 N.Y. App. Div. LEXIS 795

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 12, 1909
• Status: Published

Opinion

Gaynor, J.:

The Be vised Statutes did not require that an infant over 14 years of age must unite in the petition to sell his real estate (2 R. S. p. 194, § 170, et seq.). But there was afterwards a rule of court that he should do so (Rule 58 of the General Buies of Practice prior to 1880). The framers of the second part of the Code of Civil Procedure, adopted in 1880, essayed to embody the provisions of both the said sections of the Be vised Statutes and of the said court rule in section 2349 of the said code, as is shown by their note thereto (Throop’s Code). And the section itself shows that that was done. It makes no exception if the petition be by the general guardian. Whether by the general guardian, or the guardian of the property or a relative or friend, of the infant, the petition is made in liis behalf. The contention that the petition when by the general guardian, or guardian of the property, is not in behalf of the infant, but in behalf of such guardian, and that therefore the sentence of the said code section, “ Where the application is in behalf of an infant of the age of fourteen years or upwards, the infant must join therein ”, does not apply, but only when the petition is by a relative or friend, is fanciful. It applies to the application by whomsoever made. When the requirement was only a rule of chancery it seems the court could dispense with it (Cole v. Gourlay, 79 N. Y. 527); but not now that it is a statute. It is jurisdictional.

■ Judgment for the plaintiff.

Hirschberg, P. J., Woodward, Jerks and Burr, JJ., concurred.

Judgment for plaintiff, without costs, in accordance with the terms of submission.