
    Thomas J. Bartley, Appellant, v. James R. Pitcher, Respondent.
    Supreme Court, Appellate Term, First Department,
    March 15, 1928.
    Courts — Municipal Court of Mew York •— guardians — fact that guardian had not been appointed did not warrant dismissal of complaint-— Municipal Court Code, § 26, subds. 2 and 3, applied.
    The fact that no guardian had been appointed pursuant to subdivision 2 of section 26 of the Municipal Court Code did not warrant the dismissal of the complaint herein where application for the appointment was made by the plaintiff on the trial; subdivision 3 of section 26 specifically states that the court or justice thereof shall at any time before judgment make the appointment.
    Appeal by plaintiff from a judgment of the Municipal Court, Borough of Manhattan, Seventh District, entered on decision of justice in favor of defendant.
    
      Mark Charles Platt, for the appellant.
    
      James R. Pitcher, respondent in person.
   Per Curiam.

As it is provided by subdivision 3 of section 26 of the Municipal Court Code that where no guardian is appointed for an infant defendant in accordance with the provisions of subdivision 2 of that section, the court, or a justice thereof, shall, at any time before judgment, make such appointment,” it was error, notwithstanding plaintiff’s application on the trial for the appointment of a guardian, to grant judgment for defendant dismissing the complaint because no guardian had been appointed.

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

All concur; present, Lydon, Levy and Crain, JJ.  