Jackson v. Brunor , 38 N.Y.S. 110 ( 1896 )

O’Dwyer, J.

Appeal from part of an order upon a motion to vacate a judgment.

This action was commenced by the personal service of the summons and complaint herein upon both of the defendants herein, who are father and son, in the month of September, 1894. Thereafter the father called upon the plaintiff’s attorney and admitted the claim and agreed to pay the same in monthly installments of $15 each, and did on the 18th day of September and the 12th day of October,' 1894, pay on account thereof the sum of $30 and received receipts therefor in behalf of the defendants.

¡No other payments being made, judgment was entered by default on the 5th day of July, 1895, in favor of the plaintiff and against the defendants for the balance due.

On the 17th day of July, 1895, on application made therefor, an order to show cause why said judgment should not be vacated and set aside and why the defendant Emile Brunor should not have such other and further relief as may be just was obtained and the motion argued and granted upon terms, but before "the entry of the ordef on that decision an order to show cause was granted requiring the plaintiff to show cause why a reargument should not be had, and on the return thereof the motion for a reargument was denied and an order entered denying the motion for a reargument and opening the default, vacating the judgment' and granting defendants leave to plead upon terms, and this appeal is taken by the defendant Emile Brunor from so much of the order as denies the motion for a reargument and imposes terms as a condition for the opening of the default.

On the motion the appellant in his affidavit stated that he was bom April 26, 1876, and at the time the debt sued on was contracted he was and still is an infant under the age of twenty-one years.

It nowhere appears that the plaintiff or his attorney were notified of the alleged infancy of the defendant except by the affidavit of the defendant Martin Brunor, who claims to have notified the plaintiff’s attorney of that fact, but that statement is denied and the infancy of the defendant is not admitted by the plaintiff.

It is insisted by counsel for the appellant that by reason of the statements contained in the- moving affidavits as to the infancy of the appellant, and not denied in the opposing papers, that the motion should have been granted, as matter of right, inasmuch as section 1218 of the Code of Civil ¡Procedure provides that 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,, and this section is made applicable to this court by section 3347, subdivisions 4 and 8.

I do not agree with the appellant in his contention. The .section of the Code cited applies to a case where the infancy is admitted and a judgment may be entered against an infant defendant.

In the case at bar the plaintiff cannot be bound by the statements contained in the moving papers; all that can be claimed for them is that if pleaded as a defense they will raise an issue to be determined on the trial.

Infancy is a personal privilege and can be waived, and if not pleaded a judgment against an infant would be binding on him.

■ The defendants ivere in default for want of an answer, and the judgment was properly' taken, and being neither defective nor irregular, it was within the discretion of the court to impose terms as a condition of opening the default.

• Order affirmed, with costs.

Fitzsimohs and Conlan, JJ., concur.

Order affirmed, with costs.