Peck v. Coler

Tbe motion was to set aside the judgment, upon the ground that the judgment-debtor making the application was an infant at the time the judgment was entered agaiust him.

The learned justice in the court below seems to have been controlled by the conclusion that the ground stated for relief was an irregularity in perfecting the judgment. This, we think, was Wrong. The infancy of the defendant was an error in fact, affecting the validity of the judgment, which could not be held if it were true that the applicant was an infant at the time it was entered.

For these reasons we think the motion should have been entertained and disposed of by the learned justice on its merits, and that in declining to take that course he was in error, and the order appealed from should therefore be reversed, with ten dollars costs and disbursements, and the motion for leave to renew granted. The motion on the merits will then be heard at the Special Term.

Order reversed, with ten dollars costs and disbursements, and motion for leave to renew granted.