
    Rachel R. Leaman, Respondent, v. Harry O’R. Schell, Appellant.
    (Appeals Nos. 1 and 2.)
   Per Curiam.

This action is based upon a check dated April 5, 1941, in the sum of $4,000 payable on demand to the order of one Jacques Franck and drawn on the Bank of the Manhattan Company, New York. Franck endorsed the check in blank and duly delivered the same for value. The cheek was transferred to the plaintiff who took it in good faith and for value. The defendant contends that at the time he signed the check, he was only nineteen years of age and, consequently, asserts that he is not liable on the instrument.

It might be well to point out that it is not necessary in this case, where the alleged infant has been sued, to plead a tender on his part of the consideration received in order to set up a valid defense of infancy for the purpose of defeat- ' ing plaintiff’s claim.

We do not believe, however, that there is sufficient proof in the record to establish the fact that the defendant was born on June 29, 1921. There is no affidavit in the record from either the defendant or from his mother, for whose benefit the money was obtained, nor even a birth certificate to support the defense of infancy. While the renunciation of citizenship and the identification card may be persuasive, nevertheless we believe that more competent proof should have been adduced to sustain the defense.

Under the circumstances, the order appealed from, based upon the amended complaint, should be affirmed without costs to either party, and the defendant should be given ten days to serve an answer.

Since the amended complaint was served by permission of the court at Special Term, the appeal from the original order was unnecessary, and the appeal from that order should be dismissed without costs.

Present — Martin, P. J., Townley, Glennon, Cohn and Callahan, JJ.

Order entered September 24, 1942, denying defendant’s motion for judgment dismissing the amended complaint, unanimously affirmed without costs, with leave to the defendant to answer within ten days after service of order with notice of entry thereof. Appeal from order entered March 24, 1942, denying defendant’s motion to dismiss the complaint, unanimously dismissed without costs.  