McGarity v. New York City Railway Co. — 51 Misc. 666

Majority

p. 666

John McGarity, Appellant, v. The New York City Railway Company, Respondent.

Headnote

Guardians ad litem and special guardians — Necessity for appointment — Omission to procure appointment — Reaching majority' before trial.

Appeals in three cases from judgments ■ in favor of defendant, rendered in the Municipal Court of the city of New York, eleventh district, borough of Manhattan.

p. 667

Harcourt Bull, for appellant.

A. C. Charles, for respondent.

At the time this action was commenced, the plaintiff was a minor; before the day of trial he had become of full age. This latter fact appeared upon the cross-examination, and the defendant thereupon amended its answer by setting up want of capacity in plaintiff to sue and moved to dismiss the complaint which was granted. This was error. The omission to appoint a guardian for an infant plaintiff is at most an irregularity, and does not affect the jurisdiction of the court. Goodfriend v. Robins, 92 N. Y. Supp. 240 ; Rima v. Rossie Iron Works, 120 N. Y. 433 . The plaintiff having arrived at full age before the time of trial, the action should not have been dismissed. Smart v. Haring, 14 Hun, 375 ; Sims v. N. Y. College of Dentistry, 35 id. 344.

Gildebsleeve, J., concurs; Dugbo, J., taking no part.

Judgments reversed and new trials ordered, with costs to appellant to abide event.

Cases cited

Rima v. Rossie Iron Works 120 N. Y. 433 N.Y. 1890-06-03 p. 667