Keyes v. Ellensohn — 79 N.Y. Sup. Ct. 392

Majority

p. 392

John S. Keyes and Another, Individually and as Executors, etc., Appellants, v. Barbara Ellensohn, Impleaded, etc., and Anna Kristof, by Samuel D. Sewards, her Guardian ad litem, Respondent.

Headnote

Guardian ad litem for an infant defendant — when he may be appointed on the plaintiff’s application.

A guardian for an infant defendant of tile age of fourteen years and upwards cannot be appointed upon the plaintiff’s petition until after tlie expiration of twenty days from the time that the service of the summons is complete.

Quaire, whether such an appointment is void or voidable only.

Appeal by the plaintiffs, John Keyes and another, individually and as executors, etc., of Antoine Ruppaner, deceased, from an order of the Supreme' Court, entered in the office of the clerk of the city and county of New York on the 30th day of August, 1893, vacating and setting aside the judgment entered in the above-entitled action as to the defendant Anna Kristof.

Eugene II Hatch, for the apjiellants.

p. 393

Isaac W. Miller, for the respondent.

The infant defendant was upwards of fourteen years of age when her guardian ad litem was appointed upon the petition of the plaintiffs1 attorney. An appointment of a guardian ad litem for an infant of the age of fourteen years or upwards cannot be made upon such a petition until after the expiration of twenty days from the time when the service of the summons is complete. (Code Civ. Proc. § 471.) It is conceded that this appointment was made within the twenty 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 appellant urges that a judgment against an infant defendant for whom a guardian has not been appointed is voidable, hut not void. Assume this to he 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 ten dollars costs and disbursements.

Present- — Pollett and Parker, JJ.

Order affirmed, with ten dollars costs and disbursements.