McGarity v. New York City Railway Co.

51 Misc. 666, 101 N.Y.S. 191

• Court: Appellate Terms of the Supreme Court of New York
• Decided: July 1, 1906
• Status: Published

Opinion

Dowling, J.

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.