13 How. Pr. 413 | N.Y. Sup. Ct. | 1856
An infant at common law could sue either by a guardian or prochein ami. The old cases say, that when he sues or defends by guardian, the guardian must have a warrant; but if he sues by prochein ami, the prochein ami need not; but it must appear that both the guardian and prochein ami have been admitted by the court, (Fitzgerald agt. Villiers, 3 Mod. 236; Young agt. Young, Cro. Cas. 86;) and it must be alleged to have been so in the declaration. (Cambus agt. Walton, 1 Levinz, 224; Swift agt. Nott, 1 Sid. 173; 4 Rep. 53, v 54, a.)
The Code, § 115, provides that in all cases “ when an infant is a party, he must appear by guardian, who may be appointed by the court in which the action is prosecuted, or by a judge thereof, or a county judge.” The Code, in effect, in no respect changes the law in regard to infants, except that it discards the next friend, and thereby gets rid of his name in Norman French —prochein ami—which was probably the chief object in requiring suits by infants to be brought and defended exclusively by a guardian. The necessity to show the due appointment of the guardian by the court or a judge remains as before, and for the same reason; that it is a traversable fact, and must be so stated that it may be traversed.
The case of Stanley agt. Chappell (8 Cowen, 236) is precisely in point. The plaintiff described himself as guardian in the declaration, but a demurrer was sustained because he did
These authorities, I think, clearly show that the allegation of the appointment of the guardian in this case is not sufficient. There are some cases where a description of the character of the plaintiff, as general as the one used in this complaint, have been held good, but they are cases where a party sued in an official capacity, or by virtue of his office, like the case of Smith, superintendent, &c., agt. Levirres, (4 Seld. 472,) not cases where, as in this case, there is a legal disability to sue without the express authority of the court. In such cases the authority must be averred or shown upon the face of the complaint.
I had some doubt whether the demurrer in this case was sufficiently specific, under § 145 of the Code, to raise- the point discussed. It is in the precise language of the Code, subdivision 2, “ that the plaintiff has not the legal capacity to sue but this point has been expressly decided, sustaining this form of demurrer in such a case, in 8 Howard, 177, and in several other cases to which I feel bound to conform.
The judgment of the special term should be affirmed, with $10 costs.