Dunphy v. Bolton , 21 A.D.2d 723 ( 1964 )

In affirming the order appealed from we suggested: “ Although there may possibly be a distinction in principle between the case of the infant and that of the adult no such distinction is argued or suggested by appellants.” (20 A D 2d 854.) Thereafter we granted reargument as to the derivative action and the issue is now before us. A judgment had been entered on the verdict of a jury of no cause of action as to both the infant’s ease and the mother’s derivative action. When it was discovered that no guardian ad litem had been appointed for the infant plaintiff, Special Term granted an order vacating the judgment 'both as to the infant and the infant’s mother. On reargument we 'think that the judgment as to the mother should be permitted to stand and that the order should be modified accordingly. Order modified by inserting after “ vacated and set aside ” the following: “ as to Francis M. Dunphy, an infant, by Althea Rosenbluin, his guardian ad litem,” and, as so modified, affirmed, without costs to either party on this appeal. Herlihy, J. P., Reynolds, Taylor, Aulisi and Hamm, JJ., concur.