Majority
p. 188SUPREME COURT. Amar Hoftailing by Philip Finger, her next friend, agt. Lucius Teal. Albany Special Term, March, 1855.
Headnote
Before the Code, an infant plaintiff sued by a next friend, and an infant defendant appeared by guardian; but the Code now requires a guardian in both cases.Although the change may be in name merely, it is irregular for an infant plaintiff to sue by a next friend instead of a guardian.
Motion to set aside summons, &c.
The plaintiff, being an infant, presented a petition to one of the justices of the supreme court, praying for the appointment of a next friend to commence this action.
In pursuance of the prayer of the petition, an order was made . appointing Philip H. Finger such next friend. The suit having been commenced, the defendant moved to set aside the summons and complaint, on the ground that an iiffant cannot sue by a next friend.
J. H. Reynolds, for plaintiff.
R. E. Andrews, for defendant.
Under the former practice, an infant plaintiff sued by a next friend, and the infant defendant appeared by a guardian. But the Code requires that an infant party, whether plaintiff or defendant, should appear by guardian. This change the plaintifPs attorney has, inadvertently, failed to notice. It is true, as was said upon the argument of the motion, that the difference is but in name. And yet the legislature has seen fit to declare, that the person by whom an infant plaintiff shall be permitted to sue, shall be a guardian. To commence an action in any other way is an irregularity. It is
p. 189
by no means certain that the next friend in this case would be liable as a guardian. I am inclined to think he would not. But, at any rate, the defendant was not bound to take the risk of such a question.
Though I do it with some reluctance, I am constrained to grant the motion, with costs.