
    Nathan Langer, an Infant, by Michael Langer, His Guardian ad Litem, Appellant, v. Bernard Kaufman and Rose Green, Respondents.
    (Supreme Court, Appellate Term, First Department,
    March, 1916.)
    Pleading — answer — complaint — evidence — counterclaim — contracts — Domestic Relations Law, § 72.
    The failure of the answer in an action by an infant for wages to deny tile allegation as to the rendition of services and defendants’ promise to pay therefor admits said allegation though the answer denies that the amount sued for is due.
    Plaintiff claimed thirty dollars and the answer admitted, as alleged in the complaint, that between September 26, 1915, and October 18, 1915, plaintiff rendered services for which defendants agreed to pay him the sum of nine dollars a week. A separate defense alleged that between October 3, 1915, and October 18,1915, plaintiff performed certain services amounting to the value of twenty-one dollars and that defendants had tendered that sum to plaintiff less fourteen dollars and seven cents due defendants. A check given to plaintiff for wages for the week immediately before October third and which came back from the bank not having been paid was received in evidence without objection. Held, that both on the pleadings and on the evidence plaintiff was entitled to judgment in the sum of fifteen dollars and ninety-three cents, the difference between the amount claimed and defendants’ counterclaim.
    A dismissal of the complaint if granted on the ground of absence of allegations or proof that plaintiff was emancipated should have been without prejudice.
    Plaintiff entered into service of defendants six months before the action was brought, signed the contract and received the wages. Held, that whether he was emancipated or not was immaterial in the present action, for payment to him by defendants would be binding under section 72 of the Domestic Relations Law as against plaintiff’s father even if he still has a right to claim from the plaintiff the moneys paid to him.
    Appeal by the plaintiff from a judgment' of the Municipal Court, borough of Manhattan, second district, entered in favor of the defendants.
    
      Benjamin Koenigsberg, for appellant.
    Benjamin P. Cohen, for respondents.
   Lehman, J.

The plaintiff, an infant, brought an action for the sum of thirty dollars for wages which he claims were due him for work rendered between September 26,1915, and October 18,1915. The answer denies that this amount is due, but it admits by failing to deny the allegation contained in the complaint, “ That between September 26th, 1915, and October 18th, 1915, the plaintiff rendered certain work, labor and services for the defendants for which the defendants agreed to pay him his wages, the sum of $9.00 per week.” The answer, in addition to the denial of the amount due and a denial of an immaterial allegation contained in the complaint, that the defendants were copartners doing business as the Cold Medal Handkerchief Manufacturing Company,” sets up a so-called separate defense and a counterclaim. The separate defense alleges that between October 3', 1915, and October 18,1915, plaintiff performed certain services amounting to the value of twenty-one dollars, and that the defendants have tendered that sum to the plaintiff, less the amount of fourteen dollars and seven cents, which is due to the defendants.

It is to be noted that under the so-called separate defense the defendants' admit liability for wages for two weeks and two days from October third at the rate of nine dollars per week. At the opening of the case the plaintiff’s counsel stated, “ I have a check that was given plaintiff for his wages for the week immediately before October third which check came back from the bank. Not having been paid, the entire amount of the plaintiff’s demand is admitted.” This statement was not objected to; the check was "offered in evidence and admitted without objection. The plaintiff then rested. The defendant thereupon moved to dismiss on the ground that ‘1 the plaintiff cannot maintain an action for wages; an infant is not entitled to maintain an action unless he has been emancipated.” The trial justice denied this motion and the parties then litigated the issues raised by the defendant under their counterclaim. At the close of the case the defendant again moved to dismiss the complaint on the ground that the plaintiff has not alleged or proven emancipation. The court reserved decision on the entire case and then rendered judgment ‘1 after a trial of the issues ” for the defendant.

That judgment is clearly incorrect. The material allegations of the complaint stand admitted and, even if we assume that upon the evidence presented the trial justice decided in favor of the defendant on the counterclaim, the plaintiff would still be entitled to judgment for the sum of fifteen dollars and ninety-three cents, since the counterclaim is only for fourteen dollars and seven cents. The defendant, however, claims that the trial justice dismissed the complaint on the ground that there is no allegation or proof that the infant was emancipated. If the trial justice decided the case on this ground he should have dismissed “ without prejudice,” but certainly he could not give judgment on the merits after a trial of the issues.

Moreover, even a dismissal of the complaint on this ground would be erroneous. The defendants rely for authority on the case of Shute v. Dorr, 5 Wend. 204. That case represents the common-law rule that a parent is always entitled to a minor son’s earnings unless he has emancipated the son. The rule, however, was to some extent modified by chapter 266 of the Laws of 1850, now section 72 of the Domestic Relations Law. That statute provides that Where a minor is in the employment of a person other than his parent or guardian, payment to such minor of his wages is valid, unless such parent or guardian notify the employer in writing, within thirty days after the commencement of such service, that such wages are claimed by such parent or guardian, but whenever such notice is given at any time payments to the minor shall not be valid for services rendered thereafter.” It seems to me quite clear that under the terms of this statute title to wages earned by a minor under a contract of service, unless notice is given within thirty days by the parent, vests, as between the employer and the employee, in the employee, and the parent or guardian can thereafter by notice obtain title only to those wages earned thereafter. In the present case the plaintiff entered into service of the defendant six months before the action was brought. He signed the contract and he received the wages. Whether he has been emancipated or not is immaterial in this action, for payment to him by the defendant would be binding under the statute as against the father even if the father still has a right to claim from the son moneys paid to him.

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

Weeks and Delehaxty, JJ., concur.

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