Lake v. Kessel — 72 N.Y.S. 311

Majority

p. 311

(64 App. Div. 540.)

LAKE et al. v. KESSEL et al.

(Supreme Court, Appellate Division, Second Department.

October 23, 1901.)

Headnote

Partition—Guardian Ad Litem—Disqualification of Guardian—Sale— Purchaser—Relieving- Purchaser.

Inasmuch as court rule 49 forbids the appointment as guardian ad litem of one who is connected in business with the counsel or attorney of the adverse party, where in partition a clerk in the office of plaintiff’s attorney was appointed guardian ad litem of an infant defendant such appointment was good ground for relieving a purchaser at the partition sale from his purchase prior to the passing of title.

Appeal from special term, Kings county.

Partition by Elizabeth Ealce and others against Adam ICessel and others. From an order relieving Louis F. Gross, purchaser at the partition sale, from his purchase, plaintiffs appeal.

Affirmed.

Argued before GOODRICH, P. J., and BARTLETT, HIRSCHBERG, JENICS, and SEWELL, JJ.

Richard Cohn, for appellants.

Fred. L. Gross, for respondent Gross.

The respondent Gross at a sale in partition became purchaser of the premises, making a deposit of $250 with the referee. He made a motion at special term to be relieved from his purchase, and that the referee pay him certain expenses. Among the objections assigned by him for his refusal to complete the purchase was the fact that George M. Schnizel was appointed guardian ad litem of certain infant defendants, being at the time of said appointment connected with the office of the plaintiffs’ attorneys. Rule 49 forbids the appointment of guardian ad litem of one “who is connected in business with the counsel or attorney of the adverse party.” The record shows that Mr. Schnizel was a clerk in the office of the plaintiffs’ attorneys (though intending to 'dissolve his connection with them) at the date of his appointment as guardian of the infant defendants in this action. . For this reason the objection to the title' was well taken, and it was proper that the purchaser should be relieved from his purchase and repaid the amount of his bid, with interest, together with his expenses of examining title.

This order should be affirmed upon the doctrine of Hecker v. Sexton, 43 Hun, 593 , 596. Although that was a mortgage foreclosure suit, the rule there announced seems to be equally applicable in partition. In so deciding, we shall not run any risk of disturbing titles based on partition sales where the same rule may have been violated, and no suggestion of that fact was made until after the title was passed. “I am of the opinion,” says Macomber, J., in the case cited, “that any person actually interested in a pecuniary way_ in having a clear and unassailable judgment record as the foundation of his title to real estate has the right to object, if done seasonably, as has been done by this purchaser, to a judicial proceeding prohibon a mere irregularity may well be, and, indeed, often ought to be, ited by the general rules of practice.” An objection which is based sustained, when made in the very proceeding itself before the passing of title, where the same objection might not be deemed fatal to

p. 312

the title in the hands of a purchaser taking without knowledge of such irregularity. The order, however, contains an additional clause directing the payment to the purchaser of interest on $2,000 which he borrowed to enable him to complete his purchase. This clause of the order was without warrant. The order should be modified by striking out the clause in question, and, as modified, affirmed, without costs of this appeal to either party.

Order modified, without costs, in accordance with the opinion of GOODRICH, P. J. All concur.