ARTICLE FOURTH. Infant plaintiffs and defendants. Sec. 468. Right of infant to bring action. 469. Guardian for infant plaintiff must be appointed. 470. Application therefor. 471. Application for appointment of guardian for infant defendant. 473. Guardian for absent infant defendant. 474. Guardian not to receive property until security given. 475. Security. 476. Last two sections not to apply to general guardian. 477. Liability of defendant's guardian for costs. § 468. Right of infant to bring action, Where an infant has a right of action, he is entitled to maintain an action thereon; and the same shall not be deferred or delayed, on account of his infancy. § 469. [Am'd, 1891.] Guardian for Infant plaintiff must be appointed. Before a summons is issued, in the name of an infant plaintiff, a competent and responsible person must be appointed, to appear as his guardian for the purpose of the action, who shall be responsible for the costs thereof, except where such infant prosecutes as a poor person as provided for under section 459 of this act, in which case security for costs shall not be required. In effect September 1, 1891; not applicable to actions or proceedings commenced prior to such date; L. 1891, ch. 170. See & 3249. § 470. Application therefor. The guardian must be appointed upon the application of the infant, if he is of the age of fourteen years, or upwards; or, if he is under that age, upon the application of his general or testamentary guardian, if he has one, or of a relative or friend. If the application is made by a relative or friend, notice thereof must be given to his general or testamentary guardian, if he has one; or, if he has none, to the person with whom the infant resides. Co. Proc., 116, subd. 1. § 471. [Am'd, 1879.] Application for appointment of guardian for infant defendant. An infant defendant must also appear by guardian, who must be a competent and responsible person, appointed upon the application of the infant, if he is of the age of fourteen years, or upwards, and applies within twenty days after personal service of the summons, or after service thereof is complete, as prescribed in section 441 of this act; or if he is under that age, or neglects so to apply, upon the application of any other party to the action, or of a relative or friend of the infant. Where the application is made by a person other than the infant, notice thereof must be given to his general or testamentary guardian, if he has one within the State; or, if he has none, to the infant himself, if he is of the age of fourteen years, or upwards, and within the State; or, if he is under that age, and within the State, to the person with whom he resides. § 472. [Am'd, 1879.] Guardian, how appointed. when to act. Clerk, The court in which the action is brought, or a judge thereof, or if the action is brought in the supreme court, the county judge of the county where the action is triable, may appoint a guardian ad litem for an infant, either plaintiff or defendant, as prescribed in this article. The clerk must act in that capacity for an infant defendant where the court or the judge appoints him. No person, other than the clerk, shall be appointed a guardian ad litem, unless his written consent, duly acknowledged, is produced to the court or judge making the appointment. Predicated on Co. Proc., § 115; 2 R. S. 446, § 4. § 473. [Am'd, 1889.] Guardian for absent infant defend ant. Where an infant defendant resides out of the State or resides within the State, and is temporarily absent therefrom, the court may, in its discretion, make an order designating a person to be his guardian ad litem, unless he, or some one in his behalf, procures such a guardian to be appointed, as prescribed in the last two sectious, within a specified time after service of a copy of the order. The court must give special directions in the order, respecting the service thereof, which may be upon the infant. The summons may be served by delivering a copy to the guardian so appointed, with like effect as where a summons is served without the State upon an adult defendant, pursuant to an order for that purpose, granted as prescribed in section four hundred and thirty-eight of this act; except that the time to appear or answer is twenty days after the service of the summons, exclusive of the day of service. Based on Co. Proc., part of § 116; L. 1889, ch. 494. § 474. Guardian not to receive property until security given. Except in a case where it is otherwise specially prescribed by law, a guardian, appointed for an infant, as prescribed in this article, shall not be permitted to receive money or property of the infant, other than costs and expenses allowed to the guardian by the court, until he has given sufficient security, approved by a judge of the court, or a county judge, to account for and apply the same, under the direction of the court. Co. Proc., § 420, am'd. § 475. Security. The security must be a bond to the infrnt, in such penalty as the judge directs, not less than twice the sum, or the value of the property, to be received, executed by the guardian and at least two sureties, approved by the judge, and filed in the office of the clerk. The infant, or any other party to the action, may afterwards apply for an order, directing a new hond to be given, with an increased penalty; or the court may so direct, of its own motion. 2 R. S. 446, § 5 (2 Edm. 465). § 476. Last guardian. two sections not to apply to general The last two sections do not apply to the general guardian of the infant, who has been appointed his guardian ad litem, as prescribed in this article: but the court may, at any time, require the general guardian to give additional security for the faithful discharge of his trust, before receiving money or property of the infant, under a judgment or order in the action. § 477. Liability of defendant's guardian for costs. A person appointed guardian, as prescribed in this article, for an infant defendant in an action, is not liable for the costs of the action, unless specially charged therewith by the order of the court, for personal misconduct. 2 R. S. 447, § 12 (2 Edm. 466). 111 CHAPTER VI. Pleadings in Courts of Record, including Counterclaims. TITLE I. The Consecutive Pleadings in an Action. TITLE II. - Provisions Generally Applicable to Pleadings. Sec. 478. First pleading to be complaint. 479. Copy complaint, when to be served. 480. Consequence of failure. 481. Complaint; what to contain. 482. When interlocutory and final judgment may be demanded. 484. What causes of action may be joined in the same complaint. § 478. First pleading to be complaint. The first pleading, on the part of the plaintiff, is the complaint. Co. Proc., § 141. § 479. [Am'd, 1877.] Copy complaint, when to be served. If a copy of the complaint is not delivered to a defendant, at the time of the delivery of a copy of the summons to him, either within or without the State, his attorney may, at any time within twenty days after the service of the summons is complete, serve upon the plaintiff's attorney a written demand of a copy of the complaint, which must be served within twenty days thereafter. The demand may be incorporated into the notice of appearance. But where the same attorney appears for two or more defendants, only one copy of the complaint need be served upon him; and if, after service of a copy of the complaint upon him, as attorney for a defendant, he appears for another defendant, the last defendant must answer the complaint within twenty days after he appears in the action. Substitute for part of § 130, Co. Proc. See post, § 824. See §§ 419, 422. § 480. Consequence of failure. If the plaintiff's attorney fails to serve a copy of the complaint, as prescribed in the last section, the defendant may apply to the court for a dismissal of the complaint. § 481. [Am'd, 1904, 1905.] Complaint; what to contain. The complaint must contain: 1. The title of the action, specifying the name of the court in which it is brought; if it is brought in the supreme court, the name of the county, which the plaintiff designates as the place of trial; and the names of all the parties to the action, plaintiff and defendant. 2. [Am'd, 1904, 1905.] A plain and concise statement of the facts constituting each cause of action without unnecessary repetition. 3. A demand of the judgment to which the plaintiff supposes himself entitled. Co. Proc., § 142, am'd; L. 1904, ch. 500; L. 1905, ch. 431. In effect May 16, 1905. § 482. [Am'd, 1877.] When interlocutory and final judgment may be demanded. In an action triable by the court, without a jury, the plaintiff may, in a proper case, demand an interlocutory judgment, and also a final judgment, distinguishing them clearly. § 483. Causes of action to be separately stated. Where the complaint sets forth two or more causes of action, the statement of the facts constituting each cause of action must be separate and numbered. From Co. Proc., § 167, am'd. § 484. [Am'd, 1877, 1900, 1906, 1907.] What causes of action may be joined in the same complaint. The plaintiff may unite in the same complaint, two or more causes of action, whether they are such as were formerly de nominated legal or equitable, or both, where they are brought to recover as follows: 1. Upon contract, express or implied. 2. For personal injuries, except libel, slander, criminal conversation or seduction. 3. For libel or slander. 4. For injuries to real property. 5. Real property, in ejectment, with or without damages for the withholding thereof. (See § 1496.) 6. For injuries to personal property. 7. Chattels, with or without damages for the taking or detention thereof. (See § 1689.) 8. Upon claims against a trustee, by virtue of a contract, or by operation of law. 9. Upon claims arising out of the same transaction, or transactions connected with the same subject of action, and not included within one of the foregoing subdivisions of this section. (See $1815.) 10. For penalties incurred under the fisheries, game and forest law. 11. For penalties incurred under the agricultural law. 12. For penalties incurred under the public health law. But it must appear, upon the face of the complaint, that all the causes of action, so united, belong to one of the foregoing subdivisions of this section; that they are consistent with each other; and, except as otherwise prescribed by law, that they affect all the parties to the action; and it must appear upon the face of the complaint, that they do not require different places of trial. Substitute for part of § 167, Co. Proc. L. 1900, ch. 590; L. 1906, ch. 29; L. 1907, ch. 26. In effect Sept. 1. 1907. 485. [Stricken out in 1877.] § 486. [Stricken out in 1877.] |