APPEAL, in each action, from an order made at a Special Term of the Supreme Court, held in Albany County (BOOKSTEIN, J.), and entered April 7, 1954, in Saratoga County, which granted a motion by plaintiff striking out, as insufficient in law, certain affirmative defenses contained in the amended answers of the defendants Lyford and the County of Saratoga.
James J. McNaughton and John W. Nichols for appellants.
Samuel Caplan and Bernard Cohen for respondents.
These are appeals from orders granted by the Special Term under subdivision 6 of rule 109 of the Rules of Civil Practice, striking out affirmative defenses from the defendants' answers on the ground that they were insufficient in law.
The actions were brought by an infant and her mother to recover for the false imprisonment of the infant. It is alleged that the infant plaintiff was caused to be incarcerated in the
Guardian Angel Home of Troy, New York, by the defendant Walter A. Lyford, as Commissioner of Public Welfare of Saratoga County, pursuant to an order of the Children's Court which it is alleged was jurisdictionally defective. It is further alleged in the complaints that a writ of habeas corpus was obtained by the infant's parents and that, by an order of the Supreme Court, the writ was sustained and the infant was discharged from custody upon the ground that the Children's Court had never acquired jurisdiction of the proceeding against the infant (see Matter of Post, 199 Misc. 1075, affd. 280 App.Div. 268).
The answers denied that the defendants caused the imprisonment of the infant and denied the allegation that the Children's Court order was wholly void for lack of jurisdiction and the allegation that it appeared on the face of the order that it was irregular and void. However, the answers were silent with respect to the allegations of the complaint setting forth the course of the habeas corpus proceeding and its termination in favor of the infant plaintiff.
The answers set up several affirmative defenses. One defense alleged that the order of the Children's Court was fair and regular on its face. The legal sufficiency of this defense was not challenged by the plaintiffs. A similar defense was held to be sufficient by this court in
Nastasi v. State of New York (275 App.Div. 524, affd. 300 N.Y. 473).
Another group of defenses alleged in substance that the plaintiffs had appeared voluntarily in the Children's Court and waived the issuance and service of a summons and that the Children's Court obtained jurisdiction by reason of the voluntary appearance and that the determination by the Children's Court was correct and proper. These defenses have been stricken from the answer upon the ground that they are insufficient in law.
The orders were apparently predicated upon the theory that the lack of jurisdiction of the Children's Court had been adjudicated in the habeas corpus proceeding, in which the Commissioner of Public Welfare and the County of Saratoga had participated, and that that adjudication was binding in the false imprisonment action.
The propriety of the motion practice pursued by the plaintiffs in this case is open to some question, although no question with respect to it was raised by the defendants either in the court below or in this court. Ordinarily, an affirmative defense, ...