70 N.Y.S. 74 | N.Y. App. Div. | 1901
The purchaser presents two objections to the title. The first is as to the sufficiency of a power of attorney executed by Harry M. Kaplan and Annie Kaplan, his wife, which authorized the attorney in fact to sell, convey, transfer, lease, mortgage, and in any and every other method, “ deemed by our attorney advisable, dispose of, manage and encumber any and all of my real or personal property and estate in the City, County and State of New York, and to give and grant in our names good and sufficient deeds and leases therefor ; and such conveyances, assignments, leases, mortgages or transfers which may, or shall, be made by otir attorney shall be deemed and considered as our act and deed, giving and granting unto our said attorney full power and authority to do and perform all and every act and thing whatsoever requisite and necessary,” etc. This power of attorney seems to have been executed in the State of Illinois, and in pursuance thereof the attorney executed, in th'e name of Harry M. Kaplan and Annie Kaplan, his wife, an instrument.whereby the parties of the first part, in consideration of fifty dollars, lawful mon,ey of the Hnited States, paid by the party of the second part, “ do hereby remise, release and quitclaim unto the said party of the second part, her heirs and assigns forever, All that certain plot, piece or parcel of land, .with the buildings thereon,” being the premises in question, together with the appurtenances and all the estate and rights of the parties of the first part in and to said premises. The party of the second part in this instrument was the mortgagor who made the mortgage which was foreclosed in this action. The grantors were not parties to this action.
It does not appear by the record what interest Harry jVI. Kaplan or Annie Kaplan, his wife, had in the premises in question. It seems to have been assumed by the parties in arguing this appeal that Harry M. Kaplan was the owner of the fee of the premises,
It is quite evident that it was the intention of the parties in executing this power of attorney to authorize the attorney to sell, convey, transfer and dispose of all the real or personal property in the estate in the city and county of Hew York, belonging to them, or to either of them, and to give and grant in their name a good and sufficient deed therefor, and that such conveyance when made by the attorney should be deemed and considered as the action of the parties executing the power of attorney. Assuming that the premises in question were vested in Harry M. Kaplan, as the parties assumed in their argument of the appeal before ús, the fact that his wife joined with him in a power of attorney by which the. attorney was authorized to sell the real estate in the city, county and State of Hew York, and to give in the name of both the parties to the power of attorney a good and sufficient deed therefor, must be conclusive evidence that it. was the intention of the wife to authorize the attorney to execute in her name a conveyance which would vest in the purchaser a good title to the real estate of her husband; and as
The other objection taken to this title depends upon the validity of the appointment of a guardian ad Utem for an infant defendant. It seems that certain of the infant defendants who were residents of France were served with the summons in the action by publication. After their time to appear had expired, on the petition of the plaintiff, the court appointed a guardian ad Utem for these infant defendants, the order not containing the provision which was required by section 473 of the Code, viz., that a person may be appointed guardian ad Utem, unless the infant, or some one on his behalf, procures such a guardian to be appointed, as prescribed in sections 471 and 472, within a specified time after service of a copy of the order. But we think this section of the Code did not apply to a case where an infant has been 'served with the summons in the action and- his time to appear or answer has expired. Such a case comes within the provision of section 471 of the Code, which provides that an infant defendant must also appear by guardian, who must be appointed upon the application of the infant, “if he is of the age of fourteen years, or upwards, and applies within twenty
The order appealed from should be affirmed, with ten dollars costs and disbursements.
Van Brunt, P. J., Eumsey, O’Brien and Hatch, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.