Andrews v. Townshend

Headnote

General guardian—when g^'operly made plaintiff—when properly appointed by surrogate, though infant is non-resident—Ejectment, judgment in, when not sustainable by reason of insufficient description of lands.

Exceptions of defendants ordered to be heard in first instance at general term.

Action in ejectment.

The Court at General Term said :—“This action was begun before September 1, 1880 (Subd. 11, § 3347, Code Civ. Pro.). The general guardian was properly made plaintiff. Although the infant was non-resident, the appointment of plaintiff as general guardian by the surrogate was valid under chapter 442, Laws of 1875 ; chapter 59, Laws of 1870. . The grave questions that were raised by defendants’ counsel on the argument should not be examined now on account of fundamental defects. The judgment directed is for the possession of the lands described in the complaint. They cannot be identified by metes and bounds given in the complaint. The only measure is one along Eighty-fifth Street. Nor can they be identified by the names given to the lots, for they are given as both 200 and 201 on the Clinton map, and as 44, 45, 46, 47, 43 and 49 on block 469 on the Nineteenth Ward.

map. In fact, the lots on the Ward map are not the same as the lots on the Clinton map. The testimony on the subject is vague and insufficient. Probably on the trial there was more testimony than appears in the printed case, or there were admissions made, which did not appear on the argument. As the case stands, the judgment could not be executed by the sheriff using only executive functions. The complaint should be amended before a new trial.”