61 Barb. 289 | N.Y. Sup. Ct. | 1870
Before this action was com- ' raenced the plaintiffs applied, upon petition, to the county judge of the county of Montgomery, that being the county in which the trial was to be had, for the appointment of guardians for the plaintiffs, respectively. The petition was signed by the father of the'infants, who were under the age of 14 years, respectively. The affidavit annexed to the petitions set forth that the proposed guardian was respon
The-Code was intended to establish a new system of practice, and in order to clear the way to secure this object, it expressly abrogated all existing rules and practice in civil actions inconsistent with the Code ; but where the former rules and practice were consistent with the Code they were to continue, subject to the power of the courts to relax, modify, or alter them. (Code, § 469.) And not only were the former rules and practice abrogated for this purpose, but all'statutory provisions of law inconsistent with this new system were expressly repealed by section 468. This Code being a remedial statute, and its intent being thus made so clear, and its object being to remove all obstructions in the way of establishing this new system, the courts are bound to see that everything is done, byway of advancing the remedy, that can be done consistently with any construction, that can be given to that end. Section 168 declares, further, that all rights of action given, or secured, by existing laws maybe prose- • cuted in the manner provided by the Code.
Starting then, under this system, and regarding' all other statutes as repealed, and rules and practice abrogated, that interfere, or are inconsistent with it, an infant plaintiff is to come into court by. a guardian, to be ap
This question has never really been directly adjudicated, , so far as I have seen in the reports, but once, which was by a divided court, in Grantman v. Thrall, at general term, in the 7th judicial district, reported in 29 How. Pr. Rep. 344, in which the majority of the court, in a brief opinion, came to the same conclusion as is herein expressed. While it is to be regretted that the statutes have not 'left this question so clear as could be desired, they must still have interpretation by the court, when presented. We have given it what we regard the most reasonable construction, in the views we have above expressed; and the result is, that the order of the special term must be affirmed. But we think it such a case of new construction of a question of intent of the statute, and of the practice, that it should be without costs.
Bockes, Potter, Rosekrans and James, Justices.]