102 N.Y.S. 1025 | N.Y. App. Div. | 1907
The action'is brought to recover money paid on account of- the .purchase price of real property contracted to ,be conveyed to the plaintiff’s assignor. It is based on an alleged defective title. The defendant’s title depends upon the validity of proceedings to sell an. infant’s real property pursuant to section 2348 et seq. of the Code - of Civil Procedure. The defect alleged is the absence of the order of reférence required by section 2354. The papers in said proceed- - ing on file in the county clerk’s office are the petition of the guardian of the infant, who was under the age of fourteen, the consent and order appointing the .special guardian, the • undertaking of said guardian, the report of a referee, the order of; the Supreme Court
I think this view makes -further consideration of the case unnecessary, and requires the conclusion that the purchaser was not bound to accept the title offered. '
. The judgment should be reversed.
. Woodward and Jenks, JJ., concurred; Hirsohberg, P. J., and Hooker, J., dissented. -
Judgment reversed and new trial granted, costs to abide the event. ...