#### Emil J. Winterroth and Valentine J. Faeth, Copartners, Doing Business Under the Firm Name and Style of Winterroth & Company, Respondents, *v.*Cornelius Cox, Appellant.

(Supreme Court, Appellate Term,

February, 1912.)

Municipal Courts — Municipal Courts of the city of Hew York — Procedure— Judgments — Review — Judgments and orders reviewable.

The failure to appoint a guardian *ad litem*for an infant defendant, as provided by section 41(2) of the Municipal Court Act of the city of New York, is an irregularity for which a judgment rendered against' him will be reversed when timely objection is taken; but the court does not lose jurisdiction of the action because of such irregularity.

Where a return on appeal from such a judgment has been made the appellate court will by an order *nunc pro tunc*as of the time of the filing of the return appoint a guardian *ad litem*for the defendant and reverse the judgment.

Appeal by the defendant from a judgment of the Municipal Court of the city of Few York, borough of Manhattan, first district, rendered in favor of the plaintiff.

Isidor E. Schlesinger, for appellant.

Fovember & Jaffe (Kevie Jaffe, of counsel)-, for respondents-.

.Seabury, J.

The defendant, an infant, appeals from a judgment rendered "against him. The ground upon which' reversal is.sought is that no guardian *ad litem*has been appointed for the defendant. .Section 41 -of the Municipal Court Act, subdivision 2, provides that, “After the service and return of a 'summons against an infant defendant no other proceedings shall be taken in the action, until a person has been appointed to .appear as his guardian for the purpose of the action.”

Fo guardian *ad litem*having been appointed, it is evident *468that the judgment was rendered in plain disregard of the statute. The failure to appoint a guardian for an infant defendant is an irregularity for which the judgment must he reversed when timely objection is taken. McMurray v. McMurray, 66 N. Y. 175; McGarity v. Yew York City R. Co., 51 Misc. Rep. 666. This irregularity did not deprive the court of jurisdiction. McGarity v. New York City R. Co., *supra.*

The infant defendant is now before the court, urging objections to the judgment-rendered against him. Under these circumstances, á return having been made by the court below, we think it is the duty of this court to appoint a guardian *ad litem-.*It is true- that, in Frost v. Frost, 15 Misc. Rep. 167, the County Court did not pursue this practice. The propriety of the practice suggested has, however, been approved in Moody v. Gleason, 7 Cow. 482, and in Fish v. Ferris, 3 E. D. Smith, 567.

In Fish v. Ferris, *supra,,*Ingraham, P. J., said: “After the return is made, and further proceedings become necessary, then there should be a guardian appointed. The cause is then pending in this court, and the respondent is an infant, who can appear in no other way, and against whom no judgment would he valid without such appointment. * * * If it is proper to make the appointment on the request of the infant, it is equally so for the plaintiff, if the infant neglects to make the application.”

We think that this case suggests the orderly and proper practice which should be pursued. An order will, therefore, be entered, appointing a guardian *ad litem*for the infant defendant, said order to be entered *nunc pro tun-c*as of the date- when the return was filed in this court, and the judgment will be reversed and a new trial ordered, with costs to the appellant to abide the event.

Gerard and Hotchkiss-, JJ., concur.

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