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1. GUARDIAN AD LITEM FOR PLAINTIFF.8 1. Power of the court.] — In the absence of statute, any person, as next friend of an infant, might institute a suit in its behalf, subject of course to the power of the court to refuse to entertain it if not apparently for the infant's advantage. The chief object of thus requiring the appearance of an adult was to have some one responsible for costs. This power to recognize a next friend or appoint a guardian ad litem, is inherent in the court.

10

The Codes of Procedure require a guardian ad litem to be ap

8 A guardian ad litem cannot settle the action in which he has been appointed, without the court's authority. He cannot collect or enforce the judgment obtained until he has given the security required by Code Civ. Pro., $ 475, and an execution issued by his attorney will be set aside if security has not been given. Willeman v. Met. St. Ry. Co., 80 App. Div. 53, 80 N. Y. Supp. 233.

There is no authority for the appointment of a guardian ad litem for an incompetent adult plaintiff. Rankert 1. Rankert, 105 App. Div. 37, 93 N. Y. Supp. 399. If the infant plaintiff is insane a committee should be appointed to sue on his behalf. Callahan v. N. Y. C. & H. R. R. R. Co., 99 App. Div. 56, 90 N. Y. Supp. 657.

9 Where a cause of action exists directly in favor of an infant, the action should be brought by a guardian ad litem. Schlieder v. Dexter, 114 App. Div. 417. As to when actions may be by the infant through a guardian ad litem, and when by his general guardian, see Perkins v. Stemmel, 114 N. Y. 359 ; Carr v. Huff, 57 Hun, 18, 10 N. Y. Supp. 361; Segelken v. Meyer, 94 N. Y. 473; Coakley v. Mahar, 36 Hun, 157; Rule 87 of U. S. Ct. Eq. Pr.; N. Y. Code Civ. Pro., 8 468.

10 Brick's Estate, 15 Abb. Pr. 12.

pointed in all cases," and as the proceeding is thus now statutory, at least in case of actions, the terms of the statute should be carefully followed. 12 While the chief object is to secure intelligent attention to the infant's interest, the guardian ad litem must be responsible, i. e., of sufficient ability to answer to the infant for his negligence or misconduct.13 The guardian ad litem of an infant defendant incurs no liability for costs of the action, except in case of misconduct." The appointment of the guardian ad litem is not a condition of jurisdiction; and if the neglect to procure appointment for an infant plaintiff is not objected to, a judgment in his favor will not be void, but the irregularity will be disregarded or the defect amended.16 Such a judgment against an infant defendant is not void, though it is voidable.16

2. Poor infant.]— If the infant and his friends are poor and irresponsible, and the court has granted leave to sue in forma pauperis, the guardian, though relieved of the possibility of being held to pay costs, must, nevertheless, show himself of sufficient ability to answer to the infant whom he represents, for his misconduct or negligence.17 If the infant show that he has no relative or friend of sufficient financial ability to act, it presents a case where the judge should designate some attorney.18

11“ 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.” N. Y. Code Civ. Pro., § 469. Yet an action brought by a general guardian, shown by the title of the action and by the complaint to be solely in behalf of the infant, and where the recovery is for his benefit, is, in the absence of fraud or collusion, binding on the infant. Carr v. Huff, 57 Hun, 18, 10 N. Y. Supp. 361. Even his general guardian cannot institute a suit in the infant's name without appointment as guardian ad litem. Hoyt v. Hilton, 2 Edw. 202.

12 See, for instance, Spencer r. Robbins, 5 N. E. Rep. 726, 731.

13 Gen. Rule No. 49. The plaintiff's guardian ad litem is responsible for costs (Code, 8 469), and the defendant has an interest in his selection to the extent at least of requiring that his disclosed responsibility at least equal his possible liability. Strong v. Jenkins, 15 N. Y. Supp. 120, 21 Civ. Pro. Rep. 9.

14 N. Y. Code Civ. Pro., § 477.

15 Spooner . Del., L. & W. R. R. Co., 115 N. Y. 22; Rima v. Rossie Iron Works, 120 N. Y. 433. If he becomes of age before trial the irregularity is cured. Sims v. N. Y. College of Dentistry, 35 Hun, 344, aff'd, 108 N. Y. 661. So an apparent irregularity in the papers on the application may be amended so as to cure an objection. See Baumeister v. Demuth, 84 App. Div. 394, 89 N. Y. Supp. 831; aff'd, 178 V. Y. 630.

16 MeMurray r. McMurray, 66 N. Y. 175; Crouter v. Crouter, 133 N. Y. 55; Fox v. Fee, 24 App. Div. 314, 49 N. Y. Supp. 292. See Chap. XIV, art. X, VACATING AND OPENING JUDGMENT.

17 N. Y. Gen. Rule No. 49.

18 It is the attorney's duty to so act when appointed. N. Y. Gen. Rule No. 50.

3. The practice.]-Application to appoint a guardian ad litem for an infant plaintiff must be made before commencing the action.19 This application must be made by the infant if he is of the age of fourteen or upwards; if not, then by his general or testamentary guardian, or by some relative or friend.20

Application is by petition. It may be without notice, except to the guardian or other custodian of the infant if a third person applies.21

The papers presented upon the application must show that the proposed appointee has the qualifications, and is free from the disabilities under the court rules.22

Application, whether by the plaintiff or a defendant, to appoint a guardian ad litem for an infant defendant, is made after service of summons, and on notice. An appointment made at the suggestion of the adverse party will be set aside and proceedings vacated.23

4. Collection of costs. — If the infant's case is unsuccessful, the judgment is against him, including costs if awarded ; 24 and such costs, if he is an infant plaintiff may be collected of the guardian by execution or otherwise, as though he were plaintiff.25

19 N. Y. Code Civ. Pro., $ 469. Appointment after the date of the summons and of the verification of the complaint is irregular. Hill v. Thacter, 3 How. Pr. 407.

20 N. Y. Code Civ. Pro., § 470.

Under N. Y. Code Civ. Pro., $ 472, apply to the court in which the action is to be brought, or a judge thereof; or, if in the Supreme Court, one may apply to the county judge of the county where the action is triable, except in partition, where Id., & 1535, requires the application to be made to the court.

21 Id., & 470.

22 The proposed guardian should be shown fully competent to understand and protect the infant's rights, to have no interest adverse to the infant, to have no business connection with attorney or counsel of the adverse party, and to be of sufficient financial ability to respond to the infant in damages for any negligence or misconduct. He must not be nominated by adverse party. See N. Y. Gen. Rules No. 49. A purchaser at foreclosure will not be relieved from completing on showing that a guardian ad litem had been appointed in violation of this rule where the order on its face shows compliance with the rule; the appointment may, however, be directly attacked, or: the order reviewed on an appeal from it. Parish 1. Parish, 175 N. Y. 181, rev'g 77 App. Div. 267 (appointee connected in business with attorney for adverse party); Matter of Cutting, 38 App. Div. 252, 56 N. Y. Supp. 948 (nominated by adverse party); Hecker v. Sexton, 43 Hun, 593 (adversary, though in a representative capacity merely).

23 See Matter of Cutting, 38 App. Div. 247, 252, 56 N. Y. Supp. 948. 24 Schoen v. Schlessinger, 7 Abb. N. C. 399. 25 N. Y. Code Civ. Pro., § 3249; Miller v. Woodhead, 52 Hun, 127, 17 Civ. Pro. 102, 5 N. Y. Supp. 88; Pierce v. Lee, 36 Misc. 865, 74 N. Y. Supp. 927.

5. Remedy for omission.]— Where an infant sues without the appointment of a guardian ad litem, the remedy is to move before answering, that the proceedings be set aside, or to set up the plaintiff's infancy in the answer in abatement. A plea to the merits alone, is a waiver of the objection.2

6. Subsequent maturity of infant party.]— If the infant party, for whom the guardian ad litem is acting, becomes of age pending the action, there should be a suggestion on the record made, and the action proceed in the name of the former infant.27

FORM No. 340. Petition of infant of fourteen or over for appointment of guardian ad litem

for himself.

In the Matter of the Application

of A. B., an Infant, for the Appointment of a Guardian, ad litem.

Court.28

To the

The petition of A. B., an infant, respectfully shows: I. That your petitioner is an infant and was of the age of years on the

day of

last; that your petitioner is [the only minor child of C. B. and D. B., who are both deceased], and resides with

and that he has no general or testamentary guardian appointed pursuant to law [or otherwise show what guardianship, whether in this or another State,29 the petitioner has].

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II. [State the object of action briefly, for instance, as follows:] That said C. B. died on the

day of 19 seized in fee simple of certain premises [describing them briefly], which were leased by the said C. B. at the time

26 Fellows v. Niver, 18 Wend. 563; Parks v. Parks, 19 Abb. Pr. 161; Strong 1. Jenkins, 15 N. Y. Supp. 120, 21 Civ. Pro. 9.

27 See SuggesTION ON Record, p. 446; Breese v. Met. Life Ins. Co., 37 App. Div. 152, 55 N. Y. Supp. 775.

28 If in partition, or in any case, if it be such that a reference as to

the propriety of the action may be desired, address to the court.

29 Freund v. Washburn, 17 Hun, 543.

of his death, to one Y. Z. That said C. B., by his last will, devised said premises to your petitioner and his brother E. B., in equal undivided moieties. That said Y. Z. is now indebted to your petitioner and the said E. B. in the sum of one hundred dollars, rent of said premises accrued since the death of C. B. aforesaid. That your petitioner is desirous of commencing with said E. B. an action in this court against Y. Z. for the recovery of said rent, and your petitioner is, as he is advised, a necessary party plaintiff to such action.

[For other Forms, see allegations in affidavits in Chapter VII.]

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III. That M. N. is the [uncle] of your petitioner, and resides in the county of

in this State; that said M. N. is willing to act as the guardian ad litem for your petitioner, as appears by the annexed consent, and is a competent and responsible person to become the guardian of your petitioner in such action, as more fully appears by his affidavit hereto annexed.

IV. That no previous application for the appointment of a guardian ad litem for your petitioner has been made herein [except, etc.].30

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WHEREFORE your petitioner asks that M. N., or other competent and responsible person, be appointed guardian ad litem of your petitioner to bring such action for your petitioner. [Date.]

[Signature.] [Verification as in Form No. 193, p. 326.]

FORM No. 341.

Consent of proposed guardian.31 I hereby consent to become the guardian of A. B., to bring the action referred to in his annexed petition. [Date.]

[Signature.] [Acknowledgment as in Form No. 1, p. 3.]

30 N. Y. Gen. Rule No. 25. See p. 171 of this volume.

31 Required by N. Y. Code Civ. Pro., $ 472. Failure to have consent acknowledged makes appointment irreg

ular. Cole v. McGarvey, 6 N. Y. Civ. Pro. 305.

An omission to acknowledge such consent may be cured. See Tobin v. Carey, 34 Hun, 431.

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