198 A.D. 354 | N.Y. App. Div. | 1921
The action was to recover for personal injuries alleged to have been sustained by the infant plaintiff because of the negligence of the defendant. Before the court ruled upon defendant’s motion to dismiss the complaint, counsel for the plaintiff made application that the court enter an order appointing plaintiff’s father or some other suitable person as guardian ad litem nunc pro tunc as of the date the summons was served. Upon said application of the plaintiff being denied by the court, the plaintiff asked leave to apply at Special Term for the same relief, which application the court also denied, the court holding that it was powerless to grant the plaintiff the relief which he sought, and thereupon, upon motion of the defendant, the court dismissed the complaint.
I think the court clearly erred in thus dismissing the complaint. The law is reasonably well settled that the failure to appoint a guardian ad litem prior to the service of the summons is a mere irregularity not going to the jurisdiction of the court. Such being the case the court should have granted plaintiff’s application, and directed the entry of an order appointing a proper and suitable person as guardian
The judgment appealed from should be reversed and a new trial granted, with costs to the appellant to abide event.
Clarke, P. J., Laughlin, Smith .and Greeneaum, JJ., concur.
Judgment reversed and new trial ordered, with costs to áppellant to abide event.