#### ALBRECHT v. CANFIELD.

(Supreme Court, General Term, Fourth Department

December 26, 1895.)

1. Courts—Order by Judge or Court.

Where a petition for the appointment of a guardian ad litem is addressed to the county judge, and not to the county court, and the order of appointment is signed by the county judge, it will be assumed that the county judge acted in the capacity that he was called on to act, and in which he had a right to act, though the caption of the order recites that it was in the county court.

2. Same—Estoppel.

The fact that the attorney entered such order, and called it an order of the county court, does not estop the ward or guardian from asserting its true character.

*9418. Same. . Where a guardian ad litem is in fact appointed by the county judge, an allegation in a complaint filed by such guardian, that he was appointed by an order of the county court, does not preclude him, on a motion to dismiss the proceedings, from claiming that the order was made by the judge.

Appeal from special term, Onondaga county.

Action by Minnie M. Albrecht, by J. M. Albrecht, her guardian ad litem, against Robert H. Canfield. From an order denying a motion to dismiss the action and complaint and all proceedings on the ground that the order purporting to appoint the guardian ad litem of plaintiff was the order of the Oneida county court, and made without jurisdiction, or that plaintiff be required to procure a proper appointment, defendant appeals.

Affirmed.

Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.

Henry F. & James Coupe, for appellant.

M. V. B. McGraw, for respondent.

MERWIN, J.

The heading or caption of the order in question is, “At a Term of the Oneida County Court held at the Chambers of the Oneida County Judge in the City of Utica, N. Y., on the 29th day of April, 1895. Present: Hon. W. T. Dunmore, Oneida County Judge.” In the body of the order the petition for the appointment is referred to as being annexed. At the close of the order it is dated April 29, 1895, and is signed by the county judge. There is no direction for its entry. Upon referring to the petition, which is handed up as a part of the papers, it appears to be addressed to the county judge, and not to the county court. There was, therefore, no application to the county court, but there was an application to the county judge. It must, I think, be assumed that the county judge acted in the capacity that he was called upon to act, and in which he had a right to act. That being so, the caption of the order may be disregarded, and the order remain properly signed as a valid order. Phinney v. Broschell, 19 Hun, 116, affirmed 80 N. Y. 544; Ex parte Knickerbocker Bank, 19 Barb. 602. See, also, Dresser v. Van Pelt, 15 How. Prac. 19; People v. Kelly, 35 Barb. 447. The fact that the attorney entered the order and called it an order of the county court does not estop the plaintiff from asserting its true character. Its validity did not depend upon the form of the entry. As a rule, an ex parte order of a judge need not be entered (1 Rum. Prac. 213), though the papers should be filed (Sup. Ct. Rule 2). Nor did the allegation in the complaint that the guardian was appointed by an order of the Oneida county court conclude the plaintiff upon the motion made to dismiss the proceedings. The papers were all before the court, and the question on the motion was, not whether the complaint was demurrable (Grantman v. Thrall, 44 Barb. 173; Bartholomew v. Lyon, 67 Barb. 86), but whether there was in fact a valid appointment of a guardian. The motion was, we think, properly denied, and the order of the special term should be affirmed.

Order affirmed, with $10 costs and disbursements. All concur.