Opinion
Submitted May 22, 1946
Decided July 23, 1946
Appeal from the Supreme Court, Appellate Division, First Department, FRANKENTHALER, J.
Isidor Enselman and Louis Solomon for appellant.
Gregory A. Lee and Daniel Miner for Bradley-Mahony Coal Corporation, respondent.
John J. Stewart and John P. Smith for Vermilyea Realty Co., respondent.
The judgment dismissing the prior action brought in behalf of the infant plaintiff was ordered because of failure of diligent prosecution by the guardian ad litem. Since that judgment was not rendered upon the merits, it does not prevent the present action for the same cause of action (Civ. Prac. Act, § 482). Hence the present action, which was commenced within the period of the plaintiff's infancy, is not barred by the Statute of Limitations (Civ. Prac. Act, § 49, subd. 6; § 60, subds. 1, 3).
The judgments should be reversed and the motions denied, with costs in all courts.
LOUGHRAN, Ch. J., LEWIS, CONWAY, DESMOND, THACHER, DYE and FULD, JJ., concur.
Judgments reversed, etc.