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Albrecht v. Canfield

72 N.Y. St. Rep. 323 Court N.Y. Gen. Term Decision date 1895-12-26 English

Delivered by MERWIN, J.

Contents

Majority

p. 323
Minnie M. Albrecht, by Guardian, etc, Resp’t, v. Robert H. Canfield, App’lt.
(Supreme Court, General Term, Fourth Department,
Filed December 26, 1895.)

Headnote

1. Courts—Order by judge.
Where a petition for the appointment of a guardian ad litem is addressed to the county judge, and not to the county court, and the order of appointment is signed by the county judge, it will he assumed that the county " judge acted in the capacity that he was called on to act and in which he had a right to act, though the caption of the order recites that it was in the county court.
p. 324
3. Same.
The fact that the attorney entered the order and called it an order of tha county court, does not estop his client from asserting its true character.
• Nor does the' allegation in the complaint that the guardian was appointed by an order of the county court conclude the plaintiff upon the motion, made to dismiss the proceedings from claiming that’ the order was made : by the judge.
■Appeal from an order, denying a motion to dismiss the action, and- complaint and all proceedings on the ground that the order; purporting to appoint the guardian ad litem of plaintiff, was the order of the Oneida county court and made without jurisdiction, or that plaintiff be required to procure a proper appointment.
Henry F. & James Coupe, for app’lt; M. V. B. McGraw, for resp’t.

—The heading or caption of the order in question is, “At a Term of the Oneida County Court held at the Chambers of the Oneida County Judge in the City of Utica, N. Y., on the 29th day of April, 1895. Present: Hon. W. T. Dunmore, Oneida County Judge.” In the body óf the order the petition for the appointment is referred to as being annexed. At the close of the order it is dated April 29,1895, and is signed by the county judge. There is no direction for its entry. Upon referring to the petition, which is handed up as a part of the papers, it appears to be addressed to the county judge, andnot to the county court, but there was an application to the county judge.' It must, I think, be assumed that the county judge acted in the capacity that he was called upon to act, and in which he had a right to act. That being so, the caption of the order may be disregarded, and the order remain properly signed as a valid order-. Phinney v. Broschell, 19 Hun, 116 ; affirmed, 80 N. Y. 544 ; Ex parte Knickerbocker Bank, 19 Barb. 602 . See, also, Dresser v. Van Pelt, 15 How. Prac. 19 ; People v. Kelly, 35 Barb. 447 . The fact that the attorney entered the order and called it an order of the county court does not estop the plaintiff from asserting its true character. Its validity did not depend upon the form of the entry. As a rule, an ex parte order of a judge need not be entered (1 Rum. Prac. 213), though the papers should be filed (Sup. Ct. Rule 2). Nor did the allegation in the complaint that the guardian was appointed by an order of the Oneida county court conclude the plaintiff upon the motion made to dismiss the proceedings. The, papers were all before the court, and the question on the motion was, not whether the ‘complaint was demurrable .(Grantman v. Thrall, 44 Barb. 173 ; Bartholomew v. Lyon, 67 Barb. 86 ), but whether there was in fact a valid appointment of a guardian. The motion was, we think, properly denied, and the order of the special term should be affirmed.

Order affirmed, with $10 costs and disbursements.

All concur.

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