
    (4 Misc. Rep. 626;
    mem. report without opinion.)
    APPEL et al. v. BROOKS.
    (City Court of New York, General Term.
    June 28, 1893.)
    Judgment by Default against Infant—Remedy.
    A judgment by default will not be vacated on the ground that defendant was an intent at the time the judgment was rendered, but the defense of infancy can be interposed in such case only after procuring an order opening the default, and allowing defendant to plead.
    Appeal from special term.
    Action by Jacob Appel, Gerson J. New witter, Myron J. Furst, and Daniel Speyer against Solomon Brooks and Aaron Brooks to recover $798.79, with interest, for goods sold and delivered to defendants. From an order denying the motion of defendant Aaron Brooks to vacate and to set aside the judgment entered herein against bim by default, and to declare null and void all the proceedings had, said Aaron Brooks appeals.
    Affirmed.
    Mr. Justice MCCARTHY filed the following opinion at special term:
    This is not a motion to open a default, and allow the defendant to come in and defend, but it is to vacate and set aside a judgment and execution taken by default on the ground that the defendant was not twenty-one years of age at the time of said judgment and execution, and that, therefore, they are null and void. There is nothing in this contention. The question of infancy can only be raised after the default is opened, and the defendant allowed to plead. There may be reason why the default should be opened so as to allow it to be pleaded, but the defendant does not ask for this relief. Motion is denied, with ten ($10) dollars costs.
    Argued before VAN WYCK and FITZSIMONS, JJ.
    Otto I. Wise, for appellant.
    George W. Galinger, for respondents.
   FITZSIMONS, J.

Order affirmed, upon the opinion of the special term justice, with costs.  