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Dwyer v. Corrugated Paper Products Co.

80 Misc. 412 Court N.Y. App. Term English

Delivered by Guy, J.

Contents

Majority

p. 412
Thomas Dwyer, an Infant, by Mary Louise McGiff, Guardian ad Litem, Respondent, v. The Corrugated Paper Products Company, Appellant.
(Supreme Court, Appellate Term, First Department,
April, 1913.)

Headnote

Statutes—codification of into' a later general law—pleading—Domestic Relations Law, § 8i.
A plea is not avoided because a statute referred to therein is, without material change, codified into a later general law.
A separate defense that, prior to the commencement of an action for personal injuries to an infant, the claim in suit was
p. 413
for a valuable consideration released by plaintiff’s mother and guardian pursuant to a statute subsequently codified in section 81 of the Domestic Relations Law, is good on demurrer.
Appeal by the defendant from an order of the City Court of the city of New York sustaining a demurrer to a separate defense.
Edward J. Walsh, for appellant.
Abraham Rickman, for respondent.

Plaintiff, an infant, sues, to recover damages for personal injuries. The action was commenced on November 8, 1912.

The answer pleaded as a separate defense that on September 9, 1912, the infant, through his mother and guardian, pursuant to chapter 175 of the Laws of 1893, for a valuable consideration, executed and delivered a release of the claim in suit. Chapter 175, Laws of 1893, is repealed by the Domestic Relations Law; but its substance is now codified in section 81 of the Domestic Relations Law. Both chapter 175, Laws of 1893, and section 81 of the Domestic Relations Law relate, among other things, to testamentary guardians. A plea is not avoided because a statute referred to therein is codified, without material change, into a later general law. At common law a testamentary or general guardian has power to settle and compromise claims on behalf of his ward. Chapman v. Tibbits, 33 N. Y. 289 , 290; Torrey v. Black, 58 id. 185, 189, 190; Clare v. Mutual Life Insurance Co., 201 id. 492, 497, 498; 21 Cyc. 74; 14 Am. & Eng. Ency. of Law (2d Ed.), 55.

The respondent’s brief suggests that the guardian who executed the release was only a natural guardian,

p. 414
and as such would have no power to release his ward’s claim without the sanction of some tribunal. Naeglin v. DeCordoba, 171 U. S. 638 , 641. The answer does not so allege,'and, if such is the fact, plaintiff’s remedy was a,motion to make the plea more definite and certain. A demurrer is not a substitute for a motion to make more definite and certain. The allegations of a pleading must be liberally construed (Code Civ. Pro. § 519), and lack of precision and certainty in a plea is no ground for holding it insufficient. Lewis v. Barton, 106 N. Y. 70 , 72. Failure to move to make an answer more definite and certain results in its being construed most strongly as against plaintiff. Electrical Accessories Co. v. Mittenthal, 194 N. Y. 473 , 477.

Order reversed with ten dollars costs and disbursements and demurrer overruled with ten dollars costs.

Gerard and Page, JJ., concur.

Order reversed with ten dollars costs and disbursements.

Cases cited

Statutes and regulations cited