Tobin v. Cary

Headnote

Practice — power of the cowrt to allow amendments to he made nunc pro tunc— Code of Oiml Procedure, sec. 728.

After the sale of real estate, under a judgment entered in an action brought to foreclose a mortgage, it was discovered that a guardian ad litem for certain infant defendants had omitted to acknowledge his consent to act, as required by section 472 of the Code of Civil Procedure. Thereafter the court, upon the application of-the guardian, and upon notice to all the parties who had appeared in the action, made an order directing the clerk to file the acknowledgment of the guardian and attach the same to the judgment-roll in said action, with the same force and effect as if the same had been attached with the consent of the guardian at the time of his appointment:

Held, that the court had power to grant the order, under section 728 of the Code of Civil Procedure, and that the purchaser acquired a good title.

Controversy submitted upon an agreed statement of facts, as provided in section 1279 of tbe Code of Civil Procedure.

Thomas J. Tobin purchased a bouse and lot known as No. 170 East 113th street, in tbe city of New York, at a foreclosure sale held in said city on tbe 29th day of September, 1881. In said foreclosiire action ‘William E. Stillings was appointed guardian ad litem for tbe infant defendants, Thomas Eealey, John McEvoy r Thomas McEvoy and Margaret McEvoy, tbe former then being an infant over fourteen years of age, and tbe other three being then and now infants under tbe age of fourteen years.

Said Tobin, thereafter and before taking title from tbe referee-on said foreclosure sale, made a contract dated December 6, 18&4r to sell said property to John Gr. Cary and Leopold Roth, when-

it was discovered that the consent of said "William E. Stillings to act as guardian ad litem was not acknowledged, as provided for in section 472 of'the Code of Civil Procedure.

Thereafter the said guardian petitioned the Supreme Court, where said foreclosure action was brought, seeking to amend the papers on the appointment of said guardian, stating that the omission to acknowledge his written consent was a mere inadvertence; that it was his intention to comply with the law in that respect, and upon such petition and the consent of said William E. Stillings, as such guardian, and of Charles H. Preyer, as guardian ad litem of John Francis Fealey, and of Messrs. P. & D. Mitchell, plaintiff’s .attorneys, no other parties appearing in said foreclosnre proceedings, an order was entered at a Special Term of this court on the 29 th day of December, 1884, directing the clerk to file the acknowledgment of said guardian, and attach the same to the judgment-roll in said foreclosure action, with the same force and effect as if the same was attached to said consent at the time of the appointment of said guardian.

Said John G. Cary and Leopold Roth refused to accept said title on the ground that the Special Term of this court had no power to amend said judgment-roll nwio pro tuno, by inserting ■therein the acknowledgment to the written consent as aforesaid.