Monroe Rosenfeld, Plaintiff, v. Charles M. Miller, Defendant

Monroe Rosenfeld, Plaintiff, v. Charles M. Miller, Defendant. Second Department, March 12, 1909. Practice—sale of infant’s lands — infant over fourteen years of age must join in petition. The provision of section 2349 of the Code of Civil Procedure, requiring an infant over fourteen years of age to join in a petition to sell his lands, is jurisdictional, and the.sale is void if he does not join. A petition made solely hy the general guardian, or the guardian of the property, or hy a relative or friend of an infant fourteen years of age is not sufficient to give validity to the sale. Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil' Procedure. The question is whether the title offered by the defendant to the plaintiff is good. It comes through a sale of real property of two infants under sections 2348, et seq., of the Code of Civil Procedure, one of whom was over 14 years of age and did not join in the petition to sell. T. C. McKennee, for the plaintiff. R. H. Wilson[C. W. Wilson,Jr., on the brief], for the defendant. [MAJORITY — Gaynor, J.:] 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.