
    Louis Proweeder, Guardian ad Litem, Respondent, v. Samuel Lewis, Appellant.
    (City Court of New York.— General Term,
    January, 1895.)
    An error in entitling an action as brought by the guardian ad litem,, instead of by the infant by guardian, is merely formal and is amendable under section 728 of the Code.
    An infant who is competent to testify on the trial is competent to make an affidavit to procure an order of arrest.
    Appeal from order denying motion to vacate order of arrest, and amending title of action.
    
      Goldfogle <& OoJm, for appellant.
    W. S. Levy, for respondent.
   Ehrlich, Ch. J.

The action was begun under the above title, instead of “ Samuel Proweeder, an infant, by Louis Proweeder, his guardian,” etc.

The affidavit upon which the order of arrest was issued was made hy the infant, and alleged an assault and battery com- ' mitted upon him, from the effects of which his nose became swollen, his left eye discolored and his left ear bruised.

That it was an action hy the infant hy his guardian ad Utem was made evident by every allegation and feature throughout the proceeding.

For the error in not naming the infant first and the guard-' ian afterwards, the defendant sought to vacate the order of arrest.

The court below denied the motion, and directed that the title of the action be amended so as to read in the proper form.

The defect was formal merely, and amendable under section 723 of the Code, almost as of course.

It was also urged by the defendant tijat the infant, being of the age of ten years, could not make the affidavit on which the arrest was founded.

There is nothing in the case which intimates that the infant was so devoid of intelligence as not to understand the nature of an unprovoked assault and its effects upon his person, or which would justify a ruling that the infant did not know the nature of an oath and the consequences of its violation.

It will, therefore, be inferred that he would be competent to testify upon the trial, and if- competent there, we cannot hold that he would be incompetent to make the preliminary affidavit necessary to obtain the provisional remedy of arrest in aid of his action.

At all events, the justice below exercised his discretion, which was not abused; and the order appealed from must be affirmed, with costs.

Fitzsimons and Conlan, JJ., concur.

Order affirmed, with costs.  