
    SUPREME COURT.
    Peter A. H. Jackson agt. Francis E. Reon, Addison J. Trinnie, an infant, et al.
    
    
      Mortgage foreclosure — When motion by plaintiffs for judgment upon an affidavit of regula/rity under Rule 63 mil be denied infant defendant
    
    Where, in a foreclosure suit, a motion was made by plaintiff for judgment based upon an affidavit of regularity under Rule 63, where all the parties were in default except an infant who had appeared and interposed an answer:
    
      Held, that as the third defense contained in the answer of the infant by his guardian ad litem raises a material issue, namely, the amount unpaid on the mortgage held by the plaintiff, the motion being based solely upon Rule 63, must be denied.
    
      Special Term, September, 1880.
    This was a motion by plaintiff for judgment in a foreclosure suit based upon an affidavit of regularity under Rule 63, where all the parties were in default except an infant who had appeared by guardian and interposed an answer wherein, among other things, it was alleged as follows: “And said defendant, by his guardian, further shows and alleges on information and belief that the original mortgage mentioned in the complaint herein, and bearing date December 18,1867, was thereafter reduced and partially paid off by the defendants Reon and Murphy; and at the time of the execution of the second mortgage mentioned in the complaint herein, and which is being foreclosed, and bearing date September 20, 1879, by the said defendants Reon and Murphy to this plaintiff, there was due and owing on said first mortgage the sum of only two thousand dollars, or thereabouts, and, therefore, denies the allegations in the complaint in relation thereto.”
    
      G. S. and I. H. Stitt, plaintiff’s attorneys,
    for motion, cited James agt. Morey (2 Cow., 246); Ingraham agt. Baldwin (9 N. Y., 45); Clift agt. White (12 N. Y., 519); Mickles agt. Townsend (18 N. Y., 582); Bascom agt. Smith (34 N. Y., 320).
    
      Chas. G. Cronin, guardian ad litem, opposed.
    The answer raises a material issue, viz.-, the amount due thereon. All material issues must be tried by the court (Exchange F. Ins. Co. agt. Earley, 54 How., 279; Code, sec. 965). There can be no valid decree against an infant by default, nor upon his guardian’s answer (Mills agt. Dennis, 3 Johns. Ch., 367). An infant’s claim to property is entitled to especial protection (Freemam agt. Muns, 15 Abb., 468). The consent by a guardian-to a decree will not bind the infant (Rogers agt. Cruger, 7 Johns., 557).
   Macomber, J.

The third defense contained in the answer of Trinnie by his guardian ad Utem raises a material issue, namely, the amount unpaid upon the mortgage held by the plaintiff. This motion, therefore, being based solely upon Buie 63, must be denied.

The motion is denied, with ten dollars costs.  