Keyes v. Ellensohn — 55 N.Y. St. Rep. 486

Majority

p. 486

John S. Keyes et al., App’lts, v. Barbara Ellensohn et al., Resp’ts.

(Supreme Court, General Term, First Department,

Filed October 13, 1893.)

Headnote

1. Infants—G-tjabdian ad litem.

An appointment of a guardian ad litem, for an infant defendant over 14 years of age cannot be made on the plaintiff's petition until after the expiration of SO days from the time when the service of the summons is complete.

S. Same—Judgment.

Where a guardian was appointed before the SO days had expired and appeared and answered, but made no defense on the trial, Held, that the judgment against such infant was properly vacated.

Appeal from order setting aside judgment as to defendant Anna Kristof.

Eugene H. Hatch, for app’lts; Isaac L. Miller, for resp’ts.

The infant defendant was upward of 14 ^ears of age when her guardian ad litem was appointed upon the petition of the plaintiff’s attorney. An appointment of a guardian ad litem for an infant of the age of 14 years or upward cannot be made upon such a petition until after the expiration of 20 days from the time when the service of the summons is complete. Code Civ. Pro. § 471. It is conceded that this appointment was made within the 20 days, and consequently it was premature and void. The guardian so appointed appeared in the action and answered, but made no defense on the trial, and May 5, 1892, judgment was entered against the infant. On July 24, 1892, a guardian ad litem was appointed on the petition of the infant, who moved to vacate the judgment as against his ward, which was granted. The appellants urge that a judgment against an infant defendant for whom a guardian has not been appointed is voidable, but not void. Assume this to be so—which we do not decide— the special term had the right to set aside a voidable judgment as against this infant, and we think its discretion was wisely exercised. The order appealed from should be affirmed, with $10 costs and disbursements.

Follett and Parker, JJ., concur.