Harvey v. Large
New York Supreme Court
THIS action was commenced in a justice’s court, to recover damages arising from the negligence of the defendant occasioning the death of the plaintiff’s horse. It was tried March 11, 1867. The defendant, by his guardian, among other defenses, pleaded a former action, for the same cause, and judgment, in bar.
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THIS action was commenced in a justice’s court, to recover damages arising from the negligence of the defendant occasioning the death of the plaintiff’s horse. It was tried March 11, 1867. The defendant, by his guardian, among other defenses, pleaded a former action, for the same cause, and judgment, in bar. In the former action, the defendant appeared without a guardian, and on the trial proved his infancy, and it was claimed in his behalf that no judgment could be rendered against him. He had not pleaded infancy, but other matters of defense. The justice took time to consider, and within…
1Opinion of the Court
By the Court, Marvin, J.
By the justices’ act, “any defendant in a suit, except persons under twenty-one years óf age, may appear and defend the same in person or by attorney.” “ After the service and return of process against an infant defendant, the suit shall not be any *224further prosecuted until a guardian of such infant be appointed.” (2 R. S. 232, §§ 41, 42.)
The justice has no jurisdiction to proceed in an action against an infant defendant after the service and return of the process, until a guardian has been appointed. The justice has no right to receive the complaint of the plaintiff,…
2Cases cited3 opinions
- Clapp v. . GravesNew York Court of Appeals · 1863
- Mockey v. GreyNew York Supreme Court · 1807
- Sagendorph v. ShultNew York Supreme Court · 1863
3Cited by5 opinions
- Melis v. Department of HealthAppellate Division of the Supreme Court of the State of New York · 1940
- McMurray v. McMurrayNew York Supreme Court · 1870
- McMurray v. McMurrayNew York Supreme Court · 1870
- Frost v. Frost, New York County Courts1895
- Cowan v. Ganung, New York County Courts1908