Fishbein v. Fishbein — 179 A.D. 883

Majority

p. 883

Nathan Fishbein, Appellant, v. Blanche Fishbein, Respondent.

Headnote

Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office March 30, 1917, dismissing the complaint for insufficiency of evidence upon a trial at Special Term.

Without expressing any opinion with respect to the sufficiency of the evidence to warrant an annulment of the marriage, we affirm the judgment on the ground that the defendant was an infant and that the court was, therefore, justified, when the plaintiff moved the case for trial without having a guardian ad litem appointed for defendant, in dismissing the complaint, for plaintiff could not in those circumstances take judgment by default. (See Code Civ. Proc. § 1218.) The judgment should be affirmed, without costs. Present — Clarke, P. J., Laughlin, Scott, Davis and Shearn, JJ. Judgment affirmed, without costs.