THIRD DEPARTMENT, MAY TERM, 1893. that the defendant, in making those statements, had no knowledge of any departure from the terms of the guaranty, and supposed that they were delivered on an order such as was prescribed by the guaranty. What he said, therefore, was not a ratification with knowledge of the facts, and did not for that reason amount to such a ratification as would bind the defendant. (Kelly v. Geer, 101 N. Y. 664-666.) * * * In Ritch v. Smith (82 N. Y. 627), it was held that "to establish a ratification by a principal of an unauthorized act of his agent, it must appear that the principal acted with knowledge of the facts; he cannot be held to have ratified acts which did not come to his knowledge." In Brass v. Worth (40 Barb. 654), the court hold that "Ratification is an act with knowledge, and must be unequivocal in its character. In order to make the ratification of an unauthorized act of an agent binding, it must be made with a full knowledge of the facts affecting the rights of the principal." (Hays v. Stone, 7 Hill, 128.) Story on Agency ([9th ed.] § 239, note) lays down the rule upon this subject as follows: "The principal, before ratification becomes effectual against him, must be shown to have had previous knowledge of all the material facts and circumstances in the case, and if he assented or confirmed the acts of his agent while in ignorance of all the circumstances, he can afterwards, when informed thereof, disaffirm it.” The defendant not having with full knowledge affirmed the acts of the plaintiff and Hart & Co., is not bound by his statements subsequent to the time of the delivery of the goods. On the whole case we discover no error committed by the learned county judge, for which this judgment should be reversed. The judgment must be affirmed, with costs. PUTNAM and HERRICK, JJ., concurred. Judgment affirmed, with costs. THIRD DEPARTMENT, MAY TERM, 1893 In the Matter of the Probate of the Will of WILLIAM VAN Appointment of the surrogate's brother as guardian ad litem. The fact that the guardian ad litem appointed by a surrogate for an infant party is a brother of the surrogate does not disqualify the surrogate from hearing and deciding a proceeding, involving the validity of a will or its admissibility to probate, in which the infant is represented by such guardian ad litem APPEAL by the petitioner, David S. Van Wagonen, from an order of the Surrogate's Court of Ulster county, filed in the office of the surrogate on the 19th day of July, 1892, denying his motion to set aside and revoke the probate of the will of William Van Wagonen, Jr. G. D. B. Hasbrouck, for D. S. Van Wagonen, appellant. D. B. Deyo, for the executor. A. T. Clearwater, for the respondent. MAYHAM, P. J. : Only one point seems to be urged on this appeal for the reversal of the order of the surrogate denying the motion to set aside and vacate the decree of the surrogate admitting the will of the deceased to probate, and that is that the guardian ad litem appointed by the surrogate on the probate of the will is the brother of the surrogate before whom such will was propounded for and admitted to probate. The evidence taken before the surrogate on the proof of the will has not been returned, and this court is not called upon to look into the merits of the question as to whether or not the will was properly admitted to probate on the proofs. Were the proceedings vitiated or rendered illegal by reason of the appointment of the brother of the surrogate as special guardian? Section 46 of the Code of Civil Procedure provides: "A judge shall not sit or take any part in matter * * * * * * * * * " in which he would be excluded from being a juror by reason of consanguinity or affinity to either of the parties. This provision would not in terms exclude the surrogate in this case unless the special guardian is a party in the sense in which the word "party" is used in that section. While the guardian repre THIRD DEPARTMENT, MAY TERM, 1893 sents the infant in person and in interest, I think it cannot be maintained that he is the party within the meaning of section 46 above referred to. The infant, after the guardian is appointed, still remains and retains all the interest in the matter in controversy, and is represented by the guardian, who is the officer of the court and not the party in interest. None of the fruits of the litigation belong to him, nor is he per sonally liable for any of the consequences of the controversy, and is really no more a party than the attorney who prosecutes or defends in the interest of the party whom he represents. The only qualification required is that the person appointed shall be competent and responsible. (Code Civ. Pro. § 2530.) It is true that by section 2529 of the Code of Civil Procedure certain per sons therein named are prohibited by reason of business relations, or kinship, from practicing before a surrogate, but this inhibition does not extend to a brother of the surrogate. Whatever may be said of the ethics of a judicial officer's appointment of a near kinsman to a position within the gift of such officer, we do not think that this appointment by the surrogate of his brother as special guardian of an infant litigant, in his court, comes within any of the statutory prohibitions, or of any statute which disqualifies the surrogate from hearing and deciding as to the validity of the will in question, or as to its admissibility to probate. The correctness of the conclusion of the surrogate upon the merits of this case, not being assailed on this appeal, this court should not interfere to set aside the decree unless some positive violation of law affecting the jurisdiction of the surrogate to make the decree is apparent. The guardian being only an officer of the court and not a party in the statutory sense of that term, we think the surrogate had jurisdiction to hear and determine the case. In the Matter of Hopper, a Lunatic (5 Paige, 489), the Court of Chancery held that a vice-chancellor might appoint his own son the committee of a lunatic, and as such committee was an officer of the court, and had no personal interest in the subject of the litigation, the case did not come within the provisions of section 2, 2 Revised Statutes, 275, prohibiting a judge from acting as such in a THIRD DEPARTMENT, MAY TERM, 1893 suit in which he is a party, or in which he is interested, or when he is related to either of the parties by affinity or consanguinity. In Underhill v. Dennis (9 Paige, 202), it was held that a surrogate might appoint a guardian for an infant in proceedings pending before the surrogate, although the guardian so appointed was a relative of the surrogate, on the ground that such guardian was the officer of the court, and had no personal interest as a party. I find nothing in the Code which renders a special guardian appointed by the surrogate in. proceedings before him, any less an officer of the court, or any more a party, than such guardian was under the Revised Statutes, and am, therefore, clearly of the opinion that the objection, that the surrogate was disqualified from hearing and deciding this case, cannot prevail. The order appealed from must be affirmed, with costs and printing disbursements. PUTNAM and HERRICK, JJ., concurred. Order affirmed, with costs and disbursements. THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE EDISON ELECTRIC ILLUMINATING COMPANY of New York v. EDWARD WEMPLE, Comptroller of the State of New York. Corporation Tax Act · voluntary payment under a mistake of law there can be no resettlement by the Comptroller. Section 19 of chapter 542 of the Laws of 1880 (the Corporation Tax Act), added by chapter 463 of the Laws of 1889, does not authorize or require the Comp. troller of the State of New York to resettle and revise a tax assessed by the Comptroller upon the report of a corporation voluntarily made and filed by it in the Comptroller's office, the tax upon which has been voluntarily and with. out objection paid into the State treasury by the corporation, with a full knowledge of the facts, but under a mistake of law (as subsequently dis closed by the courts) as to its liability to pay the tax. CERTIORARI to review a determination of the Comptroller of the State of New York in relation to the assessments for the three years ending November 1, 1888, of taxes against the relator. The writ was issued pursuant to an order made at the New York Special Term, January 7, 1891. THIRD DEPARTMENT, MAY TERM, 1893 W. Laird Goldsborough, for the relator. S. W. Rosendale, Attorney-General, and John W. Hogan, for, the respondent. MAYHAM, P. J. : This matter comes before this court upon the return to a writ of certiorari granted to review the determination of the Comptroller denying the application made by the relator for the revision and resettlement of a tax. The relator is a domestic corporation organized under chapter 37 of the Laws of 1848, entitled "An act to authorize the formation of gas light companies," and the various acts of the Legislature amendatory thereof. The taxes sought to be reviewed were imposed by the Comptroller for the years 1886, 1887 and 1888. The tax assessed for 1886 was paid by the relator into the State treasury in 1887, and that for 1887 was in like manner paid in 1888, and that for 1888 was paid in 1889. These taxes were all based upon the report which the relator made to the Comptroller each year, and were paid without objection by the relator. On the 8th of July, 1890, the relator made an application to the Comptroller for a resettlement and revision of these taxes, and accompanied the same by affidavits in support of such application; affidavits were also filed in opposition to such revision on the part of the State, and on the 26th of November, 1890, the Comptroller made an order denying such revision and readjustment, and for such denial and refusal the relator, on the 7th day of January, 1891, sued out this writ. The question whether a tax such as was levied and paid in this case is a legal and valid tax lawfully levied and assessed by the Comptroller, is no longer an open one, as the Court of Appeals in the case of The People ex rel. The Edison Electric Illuminating Co. v. Wemple (129 N. Y. 664), expressly held that such company was a manufacturing company, and as such exempt from this tax under section 3 of chapter 542 of the Laws of 1880. The opinion in this case was announced January 20, 1892, reversing the decision of the General Term of the Supreme Court, |