Appel v. Brooks — 54 N.Y. St. Rep. 63

Majority

p. 63

Jacob Appel et al., Resp’ts, v. Aaron Brooks, Impl’d, App’lt.

(City Court of New York, General Term,

Filed June 28, 1893.)

Headnote

Judgment—Default—Infants.

A judgment taken by default will not be vacated on the ground that it is void because the defendant was an infant at the time it was entered. The question of infancy can only be raised after the default is opened, and the defendant allowed to plead.

Appeal by defendant Aaron Brooks from order denying his motion to vacate the judgment entered herein and all proceedings thereon.

Otto J. Wise, for app’lt; George W. Galinger, for resp’t.

The following is the opinion at special term:

This isnot a motion to open a default and allow the defendant to come in and defend, but it is to vacate and set aside a judgment and execution taken by default on the ground that the defendant was not twenty-one years of age at the time of said judgment and execution, and that, therefore, they are hull and void. There is nothing in this contention. The question of infancy can only be raised after the default is opened, and the defendant allowed to plead. There may be reason why the default should be opened so as to allow it to be pleaded, but the defendant does not ask for this relief. Motion is denied, with ten dollars costs.

Order affirmed upon the opinion of the special term justice, with costs.

Van Wyck, J., concurs.