Boylen v. McAvoy
New York Supreme Court
Action for assault and battery. Defendant appeared and put in answer by attorney. On the trial of *the issue at the January circuit, 1865, it appeared that the defendant was only twenty years of age in May preceding the trial. The plaintiff had a verdict, but no judgment has been entered.
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Action for assault and battery. Defendant appeared and put in answer by attorney. On the trial of *the issue at the January circuit, 1865, it appeared that the defendant was only twenty years of age in May preceding the trial. The plaintiff had a verdict, but no judgment has been entered. The plaintiff now moves, upon affidavit and notice, for the appointment of a guardian ad litem for the defendant, as of the time of the appearance; that the appearance and answer be deemed the appearance and answer by such guardian, and the attorney, the attorney of such guardian from the time of such…
1Opinion of the CourtJohnson, J.
The specific relief asked by the plaintiff cannot be granted. The irregularity of the appearance and answer of an infant defendant by attorney, and of the trial and verdict upon the issue thus found, is an error of fact, for which a judgment would be reversed or set aside if entered. (Arnold agt. Sandford, 14 Johns. '417; Kelly agt. Clock, 2 Code Rep. 28.) It was never curable by the statute of jeofails, and cannot be obviated in this way against the defendant’s objections, although he is now of full age. He may if he chooses waive the irregularity, but the court-cannot compel him to abide by…
2Cited by3 opinions
- Leahy v. HardyAppellate Division of the Supreme Court of the State of New York · 1929
- McMurray v. McMurrayNew York Supreme Court · 1870
- Benedict v. CooperNew York Surrogate's Court · 1885