PER CURIAM: The reply to the answer of the adult defendants and the answers of the infant defendants did not raise an issue as to the Statute of Limitations. ( Fairweather v. Burling, 181 N.Y. 117; Kindgen v. Craig, 162 App. Div. 508.) The evidence given in this case presented a complete answer to the claim that the Statute of Limitations has run on this mortgage and that it must be presumed to be paid. Although the issue is not raised by the pleadings, a determination upon the merits will be more satisfactory to the parties than one based upon a technicality in pleading.
The answer raised no issue which required the trial of an issue of fact, as in an action in which issues had been raised by the service of an answer denying the allegations of fact contained in the complaint. In Fairweather v. Burling ( 181 N.Y. 117) it was held that when no adult defendant has answered and an infant defendant has served an answer merely submitting his right to the court, it raises no issue and is a practical default, and only an investigation of the facts alleged in the complaint is required by the court. I think, therefore, the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion remitted to Special Term for such further proceeding as is proper in accordance with the views herein expressed.
Plaintiffs maintain that the burden was upon the defendant not only to allege infancy and that the articles were not necessities, but that the defendant must further allege that either he has not disaffirmed the contract or that he has not ratified it after attaining the age of twenty-one years. Upon the proposition that a naked allegation of infancy raises no issue, plaintiffs cite the cases of Kindgen v. Craig ( 162 A.D. 508) and Fairweather v. Burling ( 181 N.Y. 117). In the case of Kindgen v. Craig ( supra) an infant by guardian ad litem interposed an answer denying none of the allegations of the complaint, but simply submitting the rights of the infant to the court.
Rule 66 was evidently drawn with reference to Code of Civil Procedure, section 1545. See Levine v. Goldsmith, 71 A.D. 204, 208; Fairweather v. Burling, 181 N.Y. 117, 119. That section provides for a reference to ascertain title in actions for partition in the following language: "Where a defendant has made default in appearing or pleading, or where a party is an infant, the court must ascertain the rights, shares and interests of the several parties to the property by a reference or otherwise before interlocutory judgment is rendered in the action."