Misc.] County Court, Lewis County, December, 1895. 915 and 916 of the Criminal Code in any way negative that proposition. Without further discussion it seems to me I must hold that the property of Christian Holsworth is exempt from liability in this matter, for the reason that the same is composed exclusively of pension moneys, or securities representing none but pension moneys, and that as it appears that said Holsworth has no other property this application must be denied and the proceeding dismissed. An order may be entered accordingly dismissing this matter or proceeding, but without costs. Proceeding dismissed, without costs. Matter of the Claim of THE ST. LAWRENCE STATE HOSPITAL v. FREDERICK FOWLER, as Committee. (County Court-Lewis County, December, 1895.) POOR ACTION TO COMPEL SUPPORT BY RELATIVES-JURISDICTION OF COUNTY COURT. The County Court has no jurisdiction of a proceeding to compel the payment by a lunatic father or his estate for the support of a pauper son until the liability of the father, and the amount of the support, has been determined by the Court of Sessions. APPLICATION to compel the committee of Christian Holsworth to make certain payments for the support of a pauper son of the lunatic. Mullin, Griffin & Walker, for state hospital. T. M. Reed, for committee. TURNER, J. The facts in this matter are the same as in the proceeding instituted by the St. Lawrence State Hospital against Fowler as the committee of Christian Holsworth, in the Court of Sessions in this county, to compel the committee to pay the sum of three dollars and seventy-five cents per week to said hospital for the support and mainte County Court, Lewis County, December, 1895. [Vol. 15. nance of John Holsworth, a pauper son of said Christian Holsworth, at said state institution. The petitioner is the treasurer of said hospital, and the application herein is for an order directing the committee to pay to said hospital the sum of $245.29 for the care and maintenance of John Holsworth at said institution from October 1, 1893, to the 1st day of January, 1895. The committee, by his counsel, interposes these objections, to wit: First. That the court has no power to bind either Christian Holsworth or his committee, Frederick Fowler, to the payment of this claim, as there is no evidence showing that any order has ever been obtained in the Court of Sessions requiring the said John Holsworth to be supported by his father or by the committee of his father. Second. That until an order has been obtained in the Court of Sessions determining the liability of the father and the amount thereof for the support of the said John Holsworth, the County Court has no jurisdiction to grant the order the petitioner herein requests, inasmuch as John Holsworth is not a minor, but is over twenty-one years of age. Third. That all the property of said Christian Holsworth, and all moneys and securities now in the hands of his said committee, are United States pension moneys, or derived wholly from a United States pension heretofore granted to the said Christian Holsworth. After due consideration it seems to me the objections in behalf of said Holsworth and his committee must be sustained. An order may be entered denying this application in behalf of St. Lawrence State Hospital, but without costs. Application denied, without costs. Misc.] County Court, Onondaga County, December, 1895. H. WALTER FROST, Respondent, v. HELEN F. FROST, 1. INFANTS Appellant. (County Court-Onondaga County, December, 1895.) FAILURE TO APPOINT GUARDIAN AD LITEM. Failure to appoint a guardian ad litem for an infant defendant is an irregularity for which the judgment must be reversed, if properly and timely presented. 2. SAME. Where the judgment was rendered in a Justice's Court, a subsequent appointment of a guardian ad litem is not essential to enable the defendant to raise the question of infancy on appeal. APPEAL from judgment of a justice of the peace in favor of the plaintiff. William Gilbert, for appellant. James E. Newell, for respondent. Ross, J. Appeal from a judgment rendered on the 2d day of October, 1895, in favor of the plaintiff and against the defendant by J. J. Kennelly, justice of the peace. The defendant appeared on the return day before the justice and joined issue, but did not appear on the day to which the case was adjourned, and the plaintiff made proof, and the justice rendered the judgment as above. The defendant and appellant alleges as error in fact that the defendant was, at the time of the trial, and is an infant, and as no guardian ad litem was appointed in the court below the judgment is irregular, and for this reason must be reversed. It appears from the affidavits used on behalf of the defendant that her contention as to her age is correct, although the plaintiff acted in this respect in good faith; no suggestion of the fact of infancy was made by the defendant or her attorney when they appeared before the justice. The failure to appoint a guardian ad litem for the infant defendant was an irregularity for which the judgment should County Court, Onondaga County, December, 1895. [Vol. 15. be reversed. It is termed in some cases to be more than an irregularity, to be an error in fact, but the better law seems to be that it is an irregularity for which the judgment must be reversed if properly and timely presented. McMurray v. McMurray, 66 N. Y. 175; Crouter v. Crouter, 133 id. 56, 63; McMurray v. McMurray, 60 Barb. 121, 124; Harvey v. Large, 51 Barb. 222; Fairweather v. Satterly, 7 Rob. 546; Mockey v. Grey, 2 Johns. 192; Alderman v. Tirrell, 8 id. 418; De Witt v. Post, 11 id. 460; Arnold et al. v. Sandford, 14 id. 417. It is a question of some difficulty whether the defendant is in a position to raise the question upon appeal until she has obtained the appointment of the guardian ad litem to represent her in this court. In Kellog v. Klock, 2 Code Rep. 29, an action in a court of record, the defendant procured the appointment of the special guardian before applying to set the judgment aside. In Fairweather v. Satterly, 7 Rob. 547, also an action in a court of record, a guardian ad litem was appointed subsequent to the judgment; but in all the other cases I have examined, wherein error was alleged in obtaining judgment without the appointment of the guardian ad litem, the appeal or other method of review seems to have been directly presented by the infant. I know of no provision relative to appeals from justices' judgments authorizing the appointment of a guardian ad litem subsequent to judgment. Certainly there are no provisions in Justice's Court, and there the appeal must be taken before the County Court would have any authority to act. It would also seem to be analogous to the case of one improperly served with process as being inveigled into the jurisdiction of the court, or otherwise improperly brought into court, appearing to set aside the surimons. The appellant says, as emphatically as possible, I am improperly in court, and I am trying to get out as speedily as possible. It doesn't lie with you who brought me into court to say that I am not here at least for the purpose of setting this judgment aside. It also seems that an appeal is the only remedy presented. See Jessurun v. Mackie, 24 Hun, 624. And the Misc.] County Court, Onondaga County, December, 1895. fact, if conceded, that the judgment is void, does not prevent an appeal. Striker v. Mott, 6 Wend. 465. The hardship in this case upon the plaintiff is manifest. Without fault on his part, the defendant, who was in possession of the facts relative to her age, remained silent, and so conducted herself as to practically entrap the plaintiff into the position where he now finds himself. But the injustice and hardship caused by the conduct of the defendant here is not as great as in the case of Gosling et al. v. Acker, 2 Hill, 391, 396. The courts must sustain the provisions relative to the protection of infants, however great a hardship in a special case, otherwise we might as well wipe out the entire statutory pro tection for these wards of the court. Judgment must be reversed. Judgment reversed. WILLIAM DUFFUS, Appellant, v. THE HOWARD FURNACE CO., Respondent. (County Court — Onondaga County, December, 1895.) 1. MORTGAGE-CONVERSION OF FIXTURES. A mortgagee who purchases upon a foreclosure sale of the mortgaged premises may maintain an action of conversion for fixtures wrongfully removed therefrom. 2. FIXTURES-PORTABLE FURNACE. In the absence of any special circumstances, except those arising from the nature of the property, its purpose and method of annexation to the freehold, a portable furnace is, as between mortgagor and mortgagee, a fixture. 3. CONDITIONAL SALE-FAILURE TO FILE CONTRACT. A conditional contract of sale which is not filed is invalid as against a mortgagee or purchaser in good faith. The mere fact that the mortgagee or purchaser saw the furnace in the house and knew that it was put in by the defendant is insufficient to show knowledge of the conditional contract. APPEAL from judgment of the Municipal Court of the city of Syracuse in favor of the defendant. |