Opinion
February, 1912.
Isidor E. Schlesinger, for appellant.
November Jaffe (Kevie Jaffe, of counsel), for respondents.
The defendant, an infant, appeals from a judgment rendered against him. The ground upon which reversal is sought is that no guardian ad litem has been appointed for the defendant. Section 41 of the Municipal Court Act, subdivision 2, provides that, "After the service and return of a summons against an infant defendant no other proceedings shall be taken in the action, until a person has been appointed to appear as his guardian for the purpose of the action."
No guardian ad litem having been appointed, it is evident that the judgment was rendered in plain disregard of the statute. The failure to appoint a guardian for an infant defendant is an irregularity for which the judgment must be reversed when timely objection is taken. McMurray v. McMurray, 66 N.Y. 175; McGarity v. New York City R. Co., 51 Misc. 666. This irregularity did not deprive the court of jurisdiction. McGarity v. New York City R. Co., supra.
The infant defendant is now before the court, urging objections to the judgment rendered against him. Under these circumstances, a return having been made by the court below, we think it is the duty of this court to appoint a guardian ad litem. It is true that, in Frost v. Frost, 15 Misc. 167, the County Court did not pursue this practice. The propriety of the practice suggested has, however, been approved in Moody v. Gleason, 7 Cow. 482, and in Fish v. Ferris, 3 E.D. Smith, 567.
In Fish v. Ferris, supra, Ingraham, P.J., said: "After the return is made, and further proceedings become necessary, then there should be a guardian appointed. The cause is then pending in this court, and the respondent is an infant, who can appear in no other way, and against whom no judgment would be valid without such appointment. * * * If it is proper to make the appointment on the request of the infant, it is equally so for the plaintiff, if the infant neglects to make the application."
We think that this case suggests the orderly and proper practice which should be pursued. An order will, therefore, be entered, appointing a guardian ad litem for the infant defendant, said order to be entered nunc pro tunc as of the date when the return was filed in this court, and the judgment will be reversed and a new trial ordered, with costs to the appellant to abide the event.
GERARD and HOTCHKISS, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.