
    WILLIAM NETHERCOTT, Appellant, v. JAMES KELLY, Impleaded, &c.. Respondent. .
    
      Guardian and Ward.—Their relations and liability.—Dismissal of complaint on the trial, on the ground that it does not state facts sufficient to constitute a cause of action.
    
    An action brought against a guardian and ward based upon a contract with the guardian for the board and lodging of the ward while an infant, cannot be maintained against the infant after he becomes of age, especially after judgment has been recovered against the guardian on such contract. The plaintiff must look to the guardian only for payment.
    The objection that the complaint does not state facts sufficient to constitute a cause of action is not waived if not expressly taken by demurrer or answer, but may be made at the trial. It is an objection every plaintiff is hound to meet at the trial if then and there made.
    ■ Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.
    
      Decided May 6, 1889.
    Appeal by plaintiff from judgment dismissing complaint.
    
      W. T. Birdsall, for appellant.
    
      Gibson Putsel and Eustace Conway, for respondent.
   By the Court.—Freedman, J.

On May 31st, 1888, James Kelly obtained an order vacating as against him, and on terms which were complied with, the ' judgment entered against him by default, and leaving the judgment standing as against the guardian of his estate, the defendant Charles A. Hess. The order provided, among other things not necessary to be mentioned, that James Kelly serve a verified answer to plaintiff’s amended complaint, and that the issue so formed be tried as a common law action before a jury, as if the action were served and tried separately as to James Kelly.

A verified answer having been served to the said amended complaint, the plaintiff brought the issue so formed to trial. At such trial the defendant, James Kelly, moved for a dismissal of the complaint on the ground that, as to him, the amended complaint did not state a cause of action. The motion was granted, the complaint dismissed, and judgment entered accordingly, and the plaintiff appealed..

Under § 499 of the Code of Civil Procedure, the objection that the complaint does not state facts sufficient to constitute a cause of action, is not waived if not expressly taken by demurrer or answer, but may be made at the trial. It is an objection which every plaintiff is bound to meet at the trial, if then and there raised. The plaintiff was therefore bound to see to it, at his peril, that his amended complaint was sufficient as against the defendant, James Kelly, and the real question presented by the appeal is whether it was sufficient for that purpose.

In my opinion it is clearly insufficient upon its face, irrespective of the question whether the cause of action attempted to be set forth is one- at law or in equity. The object of the plaintiff is to obtain a money judgment against James Kelly, now of full age, for board and lodging, etc., furnished to him, while an infant, under a contract made between the plaintiff and the guardian of the estate of James Kelly, with the knowledge and consent of the executor of the estate in which James Kelly is interested as a devisee. It appears that by the terms of the will of the deceased mother of James Kelly it became the duty of the guardian and of the executor to apply the rents, and, if necessary, the proceeds of the realty, to the support of the infant, and that the guardian, in the discharge of this duty, contracted with the plaintiff for the infant’s support. In such a case the plaintiff must look to the guardian only for payment. Ryan v. Boltz, 48 N. Y. Super. Ct. (16 J. & S.) 152.

Several considerations have been urged why in this case, an exception should be made to the rule last referred to. They have received careful attention, but have been found to be untenable. Moreover the record shows that the plaintiff did recover judgment in this action against the guardian.

The refusal of the trial judge to allow the amended complaint to be further amended, was discretionary, and upon the facts presented the exercise of that discretion cannot be disturbed.

The judgment should be affirmed with costs.

Sedgwick, Ch. J., and O’Gorman, J., concurred.  