#### Bernhard Weinstraub and Max Weinstraub by Louis Diamant, their Guardian *ad*Litem, Respondents, *v.*The Metropolitan Life Insurance Co., Appellant.

(Supreme Court, Appellate Term,

May, 1899.)

Municipal Court of the city of Mew York — Guardian ad litem for infant plaintiff must become responsible for costs.

tinder the Consolidation Act (Laws' of 1882, chap. 410, § 1295, subd. 1) it is a condition precedent to the maintenance by an infant of an action in the Municipal Court of the city of New York that his guardian *ad litem*should Sign and file a consent that he will be responsible for the costs if the action fails.

Appeal by the defendant from a judgment of the Municipal Court, fifth district, borough of Manhattan, rendered in favor of the plaintiffs.

Ritch, Woodford, Bovee & Wallace, for appellant.

Louis Diamant, for respondents.

MacLean, J.

Two issues, among others, were raised by the pleadings; the legal capacity of the plaintiffs to bring -the action, and the validity of the policy from the outset,

It was alleged in the complaint and denied in the answer that the plaintiffs were infants, and that Louis Diamant, above named, was duly appointed their guardian *ad litem.*Eo proof was offered to sustain this allegation. At the opening of the case, counsel for the defendant moved for the dismissal of the complaint, because the appointment of the guardian *ad litem*was irregular in that the person apparently appointed had not signed and filed a consent to be responsible for costs. This objection is a substantial one. § 12-95, Cons. Act. In a court of record it would have been obviated by due permission to serve as a poor person, but § 469, Code Civ. Pro., as amended, is not applicable to proceedings in the Municipal Court, although other provisions relating to parties prosecuting and defending as poor persons have been made so. § 3347, subd. 3, Code Civ. Pro.

The other ground urged for reversal is even more serious. The policy upon which the action is brought, and which was introduced *541in evidence on behalf of the plaintiffs, provided that the same should be void if the assured before its date had been attended by a physician for any serious disease or complaint, or had had before that date any disease of the kidneys. The policy was issued on October 5, 1896. A statement of the attending physician, introduced in evidence on behalf of the plaintiffs, without reference to, or reservation of, any particular part, declared that the deceased had been afflicted with renal colic, but not for two years next preceding his death on July 27,1898. Furthermore, the “ statement of claimant,” dated July 28, 1898, presented to the company as part of the proof of death, recites that the deceased had an operation for gall stone in Lebanon Hospital about three years before! This was corroborated by the testimony of the superintendent of the hospital, that the deceased was an inmate thereof in June, 1896. The evidence introduced by the plaintiffs, or furnished by them, that the assured had been attended by a physician for a serious disease before the date of his policy, requires the reversal of this judgment, It is not a hardship of which the plaintiffs may complain that the policy be invalidated because their father had had a serious illness before he applied for 'the policy. He knew this, and he should have communicated it to the proper officer of the company and procured a waiver of the condition in the policy.

. Judgment reversed and a new trial ordered, with costs to the appellant to abide the event,

Freedman, P. J., concurs; Leventritt, J., concurs On the first ground stated.

Judgment reversed, new trial ordered, with costs to appellant to abide event.