Kindgen v. Craig

147 N.Y.S. 571 | N.Y. App. Div. | 1914

Ingraham, P. J.:

Plaintiff, as receiver of the property of the defendant Letitia M. Craig, judgment debtor, brought this action to set aside certain transfers of personal property to Laura E. J. Craig, an infant, and by said Laura E. J. Craig to Nancy Garrick. The summons and complaint were served upon each of them as defendants. William Klein was appointed guardian ad litem for the infant defendant Laura E. J. Craig, but was in default in serving an answer. Whereupon the plaintiff, on December 6, 1913, served on the guardian ad litem, but not on the attorney for other defendants, a notice of motion for judgment or for order of reference to take proof of the facts and circumstances set forth in the complaint. On December 8,1913, after the notice of motion for judgment had been served on the guardian ad liiem, the guardian ad litem interposed a general answer by the infant defendant, simply submitting the rights of said infant defendant to the court. Thereupon the court denied the motion for judgment on the ground that the answer for the infant defendant raised the general issue.

In this ruling I think the court was wrong. An infant defendant must appear by guardian ad litem. Section 1218 of the Code of Civil Procedure provides: “ A judgment by default shall not be taken against an infant defendant, until twenty days have expired, since the appointment of a guardian ad litem for him.” The twenty days having elapsed after the appointment of the guardian ad litem, the plaintiff was entitled to move for judgment on the pleadings, the other defendants being in default in serving answer. The answer of the infant defendant, denying none of the allegations of the complaint and simply submitting her rights to the court, required the court to take proof of the facts and circumstances alleged in the complaint before granting judgment, but such proof could be taken by the court itself or by referee appointed for that purpose. The answer raised no issue which required the trial of an issue of fact, as in an action in which issues had been raised by the service of an answer denying the allegations of fact contained in the complaint. In Fairweather v. Burling (181 N. Y. 117) it was held that when no adult defendant has answered and an infant defendant has served an answer merely submitting his right to the court, it raises no issue and is a practical default, and only an investigation of the facts alleged in the complaint is required by the court.

I think, therefore, the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion remitted to Special Term for such further proceeding as is proper in accordance with the views herein expressed.

Clarke, Scott, Dowling and Hotchkiss, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion remitted to Special Term for further proceeding in accordance with opinion. Order to be settled on notice.