
    Rose H. Byrnes, Respondent, v. Martin P. Byrnes, Appellant.
    First Department,
    December, 1905.
    Separation — within what time judgment granting defendant a separation may be vacated because of failure to appoint guardian ad litem for infant plaintiff.
    A judgment of separation in favor of a defendant husband will be vacated when it appears that the plaintiff was an'infant at the time of said judgment and no guardian ad litem had been appointed, if the plaintiff move therefor within two years from the time of entry, although more than one year has elapsed since her majority. - ’
    The failure to appoint such guardian is not a mere irregularity, but is “an error in fact not arising upon the trial” under section 1283 of the Code of Civil Procedure, for which error the judgment may be vacated at any time within two years under section 1290 of the Code of Civil Procedure.
    Appeal by the defendant, Martin P. Byrnes, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 17th day of May, 1905, setting aside a judgment of separation theretofore entered in favor of the defendant.
    
      Frederick Durgan, for the appellant.
    
      William J. Martin, for the respondent.
   McLaughlin, J.:

The parties hereto were married in 1902, and this action was brought to procure a judgment of separation.

The answer set up a counterclaim and asked for the same relief as that demanded in the complaint. The issues were sent to a referee to hear and'.deter mine, who, after a trial, had found-in favor of. the defendant and upon his report, on the 13th of November, 1903, a final judgment of separation was entered. At the time the judgment Was entered the plaintiff was under twenty-one years of age, and a guardian ad litem had not been appointed for her in the action. Upon this ground, on the 14th of April, 1905, by an order to show cause, she moved to vacate the judgment. The motion was granted and defendant has appealed.

- The.material facts upon which the plaintiff based her motion toz have the judgment vacated were not denied, viz., that she was born on the 5th of January, 1883; that the judgment was entered-November 13,1903; that she did not become twenty-one years of age until the 5th-of January, 1904, and that the motion to vacate was made April 14,1905.

The appellant contends that the failure to have a guardian ad litem appointed was, at most, an irregularity, and, therefore, inas much as the respondent did not move- within one year after she became twenty-one years of age, the judgment could not, under section 1282 of the Code of Civil Procedure, he set aside.-

I am of the opinion that it was more than an irregularity. It was an error in fact not arising upon the trial ” (Maynard v. Downer, 13 Wend. 575; Gamp v. Bennett, 16 id. .48; Arnold v. Sandford, 14 Johns. 417; Peck v. Goler, 20 Hun, 534), and, therefore, under sections 1283 and.1290 of the Code of Civil Procedure, a motion to vacate the judgment could be made at any timé within two years from the daté of its entry. '

Sections 1290 and 1291 of the Code of Civil Procedure provide that if the person against whom the judgment is rendered is within the age of twenty-one years at the time of its entry, -the time of such disability is not counted as a part of the time limited for the commencement of the proceeding for relief, except that such disability can in no case extend the.time beyond five years or more than one. year after, such disability ceases. Belief from judgments taken against minors for errors of fact not arising upon the trial must be applied for within One year after the minor reaches his .majority, provided the two years’ limitation has then expired. (Matter of Tilden, 98 N. Y. 434, 443.)

Here the motion to vacate the judgment was'made within two years from the time of its entry, and within the time prescribed in tiie sections of the Code cited. This being so, there was nothing for the court to do but grant the motion. The application is only to vacate the judgment, and, therefore, we do not decide the effect of vacating the judgment or .the infancy of the plaintiff upon the other proceedings had in the action.

The order appealed from, therefore, must be affirmed, with ten dollars costs and disbursements.

O’Brien, P. J., Ingraham, Laughlin and Houghton, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  