Wilkiming ex rel. Randa v. Schmale

1 Hilt. 263

• Court: New York Court of Common Pleas
• Decided: November 15, 1856
• Status: Published

Opinion

Daly, J. —

It will not be necessary to determine whether tbe provisions of tbe Code respecting parties to actions apply to tbe justices’ courts of this city or not, as it is wholly immaterial whether tbe plaintiff appeared in tbe former action by a guardian or by a next friend, as the error, if it was one, would not affect tbe validity of tbe judgment or render it void. It might be a ground for reversing tbe judgment for error in fact, and as the judgment was against tbe plaintiff, his remedy, if be appeared erroneously by a next friend instead of a guardian, was by taking an appeal and getting tbe judgment reversed. Maynard v. Downer, 13 Wend, 575 ; Bloom v. Burdick, 1 Hill, 130 ; Schermerhorn v. Jenkins, 7 Johns. 373 ; Gardner v. Holt, Strange, 1217 ; King v. Code, id. 413 ; Hamlin v. Hamlin, Bulst. 189. But as long as tbe judgment stood unreversed, it was a bar to any other action for tbe same cause.

• Judgment affirmed.