Grantman v. Thrall

By the Court, James C. Smith, J.

The cases of Hulbert v. Young, (13 How. Pr. Rep. 413,) and Stanley v. Chappell, (8 Cowen, 235,) cited by the respondent’s counsel, are decisive in his favor. In the former, it was held by the court, in this district, at general term, than when an infant sues by guardian, as provided by the code, the complaint must allege the due appointment of the guardian. The reason assigned is, that it is a traversable fact, and must be so stated that it may be traversed. It was also held that the defect may be reached by demurrer alleging that the plaintiff has not the legal capacity to sue.

In that case, however, the complaint expressly alleged that the plaintiff was an infant under the age of twenty-one years ; while the complaint in the case before us does not contain that allegation. It is entitled “ Jacob Grantman, by John Grantman his guardian, agt. George Thrall,” and then proceeds with the words, “The plaintiff complaining states,” &c. By an express provision -of the code, the title is made a part of the complaint, and it must state, among other things, the names of the parties to the action. (Sec. 142.) The case is the same, therefore, as if it had been alleged in the body of the complaint that Jacob Grantman, the plaintiff, by John Grantman his gaurdian, “appears and complains,” &c. This brings the case within the decision in Stanley v. Chappell, There the plaintiff described himself, in the declaration, as gaurdian and security for Amanda Stanley and others, but did not show how he was guardian and security; or that he was specially appointed by the court; or that those for whom he assumed to act were infants. On demurrer it was held that the omission to state the appointment of the guardian in the declaration was fatal.

The vice of the complaint before us is, that while it shows that the plaintiff appears by guardian, it does not aver that the guardian was duly appointed so as to authorize such appearance.

[Monroe General Term, March 6, 1864.

The order appealed from should he affirmed with costs, with leave to the plaintiff to amend in twenty days, on payment- of costs of demurrer and appeal.

Ordered accordingly.

Johnson, J. 0. Smith and B. Darwin Smith, Justices.]