
    Marshall J. Rima, Resp’t, v. The Rossie Iron Works, App’lt.
    
      (Court of Appeals, Second Division,
    
    
      Filed June 3, 1890.)
    
    1. Infant—Action by—Amendment, where action has been begun WITHOUT GUARDIAN AD LITEM.
    The failure to appoint a guardian ad litem for an infant plaintiff affects the regularity of procedure, but not the jurisdiction of the court, and the court may, in its discretion, appoint a guardian nunc pro tuna, and direct that all pleadings be amended accordingly.
    3. Negligence—Master and servant.
    Plaintiff, an employee of ■ defendant, by the special direction of the “mine boss,” was engaged in shoving cars of iron ore into position to be loaded, and while a car was being drawn up a steep ascent, the draw bar broke and the car ran back and threw the empty car against plaintiff, injuring him. The draw bar was cracked to the knowledge of the mine boss. Held, that plaintiff was entitled to recover.
    Appeal from a judgment of the general term of the supreme ■court in the fourth judicial department, affirming a judgment •entered upon a verdict, and also affirming two orders, one denying a motion for a new trial and the other appointing a special guardian of the plaintiff.
    This was an action'to recover damages for personal injuries sustained by the plaintiff through the alleged negligence of • the defendant.
    On the 27th of January, 1886, the plaintiff was in the employ of the defendant, a corporation engaged in operating an iron mine in the county of Jefferson. The ore was mined far underground and was loaded on to cars, which were shoved by hand over a level track to the bottom of a somewhat steep ascent, where a wire cable was attached by means of a clevis and draw bar. Motive power, furnished by a stationary engine, was then applied to the cable and the car was thus drawn out of the mine. On the day in question, as a loaded car was being drawn up the ascent, the draw bar broke and the car descended with great velocity and ran against an empty car, which the plaintiff, by the special direction of the “ mine boss,” was engaged in shoving into position to be loaded. The empty car, thus set in sudden motion, was thrown against the plaintiff, who was severely injured. He had been working but one day in this mine when the accident happened, although he had worked in an adjoining mine belonging to the defendant for twenty days immediately preceding. Evidence was given tending to show that the draw bar was cracked at the point where it broke and that notice of this fact had been given to the “mine boss,” who, although not the nominal, was the actual .superintendent of the mine.
    
      Louis Haslrouclc, for app’lt; O. H. Walts, for resp’t.^
   Vann. J

The trial of this action was commenced on the 23rd of September 1886, and during its progress it appeared by the cross-examination of the plaintiff that he was an infant and that he would not be twenty-one years of age until the third of the following month. The defendant was ignorant of this fact on the 16th of June 1886, when the action was commenced, and did not hear of it until two days before the commencement of the trial. At the cióse of the evidence a motion was made for a nonsuit upon the ground, among others, that the plaintiff, although under age, was prosecuting the action without a guardian ad litem, whereupon an application was made to the court for the appointment of a guardian nunc pro tune, The application was granted and before the case was submitted to the jury an order was entered m the minutes of the court which, after reciting the substance of the affidavit upon which it was founded, appointed a guardian ad litem “ for said infant plaintiff for the purposes of this action, and provided “ that all pleadings herein be amended accordingly It was further directed that the order “be and hereby is entered as of a date previous to the service of the sum • mans herein. The defendant insists that the court had no power to make said order and that the motion to nonsuit should have been granted. The question is also raised by a direct appeal from the order as made.

The Code of Civil Procedure provides that where an infant has a right of action, he is entitled to maintain an action thereon; that the same shall not be deferred or delayed on account of his in fancy, but that before a summons is issued in his name, a competent and responsible person, who shall be responsible for the costs, must be appointed to appear as his guardian for the purpose of the action. §§ 468 ana 469. The corresponding section - of the Code of Procedure provided that when an infant is a party he must appear by guardian.' § 115. These sections had their origin in the Revised Statutes, which declared that when an infant had a right of action to recover real property, or the possession thereof, or to recover any debt or damages, he should be entitled to maintain a suit thereon, and that the same should not be deferred or delayed on account of such infant not being of full age, but required that a competent and responsible person should be “appointed to appear as next friend for such infant” before any process should be issued in his name. 2 R. S., 3 ed., 542, §§ 1 ana 2. Thus it appears that for many years a statute, mandatory in form, has required the appointment of a guardian or next friend before process could be issued in the name of an infant plaintiff. The decisions under these statutes have held, almost without exception, that the omission to appoint a special representative of the infant was an irregularity only, and that it did not affect the jurisdiction of the court. Thus in Fellows v. Niver, 18 Wend., 563, 565, which arose while, the Revised Statutes were in force, the court said: “ It is a question of regularity merely, not, as defendant’s counsel supposes, a question of jurisdiction.”

In Rutter v. Puckhofer, 9 Bosw., 638, decided under the Code of Procedure, it was declared that “the learned judge who granted the motion erred in deciding that this was a -jurisdictional question. The court had ¡jurisdiction of the parties and of the subject of the action, and the omission, therefore, to procure the appointment of a guardian was an irregularity, which might be cured or waived.’’

In the following cases judgment was rendered upon the same principle, necessarily involved, although not always distinctly announced. Treadwell v Bruder, 3 E. D. Smith. 596 (1854), Freyberg v Pelerin, 24 How., 202 (1862); Parks v. Parks, 10 Abb., 161 (1865); Wolford v. Oakley, 43 How., 118 (1872).

Under the Code now m force the>decisions, with a single exception, are to the same effect. In Smart v. Haring, 14 Hun, 276, one of the plaintiffs was an infant when the action was commenced, but was of full age at the time of the trial. Although no guardian had been appointed for him, it was held that the ■court acquired jurisdiction, and that the irregularity was waived by pleading to the merits.

In Sims v. The New York College of Dentistry, 35 Hun, 344, the defendant first learned from the cross-examination of the plaintiff on the trial that she was an infant when the action was commenced, and a motion was made to dismiss the complaint on this ground. Following the case last cited, it was held that the plaintiff, being then of age, was rectus in curia, and that the omission to appoint a guardian did not deprive the ■court of jurisdiction.

In Imhoff v. Wurtz, 9 Civ. Pro. Rep., 48, the county court of Brie county dismissed the complaint, because it appeared upon the trial that the plaintiff was an infant and that no guardian had been appointed. An application to set aside the order was denied, and the case does not appear to have proceeded further.

We think that it, should now be regarded as settled that the failure to appoint a guardian ad litem for an infant plaintiff affects the regularity of procedure, but not the jurisdiction of the court. This seems to have been the theory of the legislature in enacting-title 1 of chapter 8 of the Code of Civil Procedure, entitled ■“Mistakes, omissions, defects and irregularities.” This article provides that where a verdict has been rendered, the judgment shall not be stayed, impaired or affected by reason of “ the appearance by attorney of an infant party,” if the verdict or judgment is in his favor, and confers ample power upon courts of record to afford relief against irregularities of every nature, unless it should be contrary to the right and justice of the matter, or should alter the issue between the parties. Code Civ. Pro., §§ 721-725. _

_ The order complained of was, therefore, within the sound discretion of the court, and we think that, under the circumstances, the power conferred by the statute was discreetly exercised.

The conclusion of the jury that the draw iron had been fractured, and that the “mine boss" knew of the fact before the accident, is not without evidence to support it within the rule governing appeals to this court, and thus negligence on the part of the defendant was established.

There was evidence tending to show that before tne loaded car .started up the ascent the “ mine boss ” said to the plaintiff and his associates Eun back this empty car and load it and hurry up; we want to get out of the mine; ” that they then attempted to shove the car back, but meeting with some impediment on the track they were engaged in removing it when some one shouted Get out of the way, the truck is coming ” and a noise “ like a roar of thunder was heard; ” that the plaintiff jumped behind the car to get on the main track and run to a place of safety, which, as he testified,' was his only chance, but as he reached the main track his foot slipped on a piece of ice and before he could recover himself he was hit by the descending truck. It also appeared that ice had recently been removed from the track and piled up several feet high on each side, forming a bank or ridge. Under these circumstances it was a question of fact for the jury whether the plaintiff was negligent and their verdict in his favor, under the careful charge of the court, established the absence of negligence on his part. Upon the facts as found, therefore, he was entitled to recover and the judgment should stand unless some error was committed during the progress of the trial to which exception was taken.

After carefully examining all of the exceptions relied upon by the appellant we find no error that entitles it to a new trial, and the judgment and orders should, therefore, be affirmed, with one bill of costs.

All concur, except Follett, Oh. J., not sitting. 
      
       Affirming 14 N. Y. State Rep., 639.
     