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FORM No. 342. Affidavit of proposed guardian ad litem to his competency.32 [Title as in previous Form.] [Venue.] M. N., being duly sworn, says, that he resides at No.
street, in the city of and State of New York! That he is an attorney and counselor of this court [or, is general guardian -- or, father - or otherwise show relationship or conwection - of the infant -- above named], and is fully competent to understand and protect the rights of the said infant, and has no interest adverse to that of said infant, and is not connected in business with the attorneys or counsel of the adverse parties, cr of any of them. That he is of sufficient financial ability to answer to the said infant for any damage which may be sustained by his negligence or misconduct in the prosecution of the suit, and is worth the sum of at least
hundred dollars over and above all his debts and liabilities, and besides property exempt by law from lery and sale under execution. [Jurat.]
FORM No. 343. Order appointing guardian ad litem for infant plaintiff.33 [Name of] Court, [or if in partition] At a Special Term [etc.
See Form 94, p. 255]. 34
In the latter of the Application of
A. B., an infant, for the Appointment of a Guardian ad litem.
On reading and filing the annexed petition of A. B., verified
19 , for the appointment of M. N. or some other competent and responsible person as his guardian
32 N. Y. Gen. Rule No. 49.
33 As to effect of omission to ap. point in partition, see note 39, p. 595. As to other cases, see paragraph 5, supra, p. 500, and cases cited; Corker 1. Jones, 110 U. S. 317; Drischler v. Van Den Henden, 49 N. Y. Super. Ct. 508; Sims 1'. College of Dentistry, 35 Hun, 344, aft'd, 108 N. Y. 661.
34 If the action is not for partition
and is brought in the Supreme Court, a county judge may make the order; such order should have no caption and contain no direction to enter. See Albrecht v. Canfield, 92 Hun, 240, 36 N. Y. Supp. 940.
In partition, the order must be a court order. N. Y. Code Civ. Pro., $ 1535.
ad litem, the consent of said M. N., duly acknowledged, and the affidavit of said M. N., verified the
19 from which it satisfactorily appears that said M. N. is a competent and responsible person, that he has no interest adverse to that of said infant, and is not connected in business with the attorney or counsel for any person or party having an adverse interest, and is of sufficient financial ability to answer to said infant for any damage sustained by his negligence or misconduct in the prosecution of the action referred to in said annexed petition, (and, if notice to general or testamentary guardian was requisite, add,-- and proof of service of due notice of this motion on. the general guardian of said A. B., - or, and after hearing S. T., counsel for
the general guardian of said A. B.], and on motion of Q. R., counsel for the petitioner:
ORDERED, that said M. N. be and he hereby is appointed guardian ad litem of A. B., infant above-named, and authorized to prosecute for him, as such guardian, the action mentioned in the annexed petition [if in partition, add: on his giving bond, according to law,36 in the penal sum of dollars, or may state terms of Bond. See Form No. 347 (below) for the Bond.
[Date and signature,— or direction to enter, as in Form No. 108, p. 265 (above).]
III. GUARDIAN AD LITEM FOR INFANT PLAINTIFF UNDER FOUR
FORM No. 344.
Petition by general guardian, or relative, or friend, for appointment of guard
ian ad litem.
court or, county judge of the county of
1. The petition of G. H. respectfully shows:
I. That your petitioner is the testamentary guardian of A. B., an infant under fourteen years of age, duly appointed by the till of C. B., his father [or, is the general guardian of A. B., an
35 The recital of these matters, showing regularity upon the face of the order, may be of value in protecting the order against collateral attack, See Parish v. Parish, 175 N. Y. 181.
36 N. Y. Code Civ. Pro., 8 1536.
If more than one surety is required, state number,
If the order in partition fails to provide for the giving of the bond, it has been held a fatal defect (sed quære). Walter 1. De Graaf, 19 Abb. V. C. 406, 11 N. Y. St. Rep. 274.
infant under the age of fourteen years, duly appointed such on the day of
by Hon. M. N., surrogate of the
or, is the father or other relative37 - of A. B., an infant under the age of fourteen years].
II. That said A. B. was
last, and resides at entage if not already stated].
years old on the
[and state par
III. [State concisely the cause of action. Such allegations as are on information, disclose source] and your petitioner is desirous, for the benefit of said infant, that an action be brought on his [or, her] behalf to recover on the foregoing facts [or, to foreclose said mortgage or other relief].
[If the petitioner seeks appointment of himself, add, that your petitioner is willing to become the guardian ad litem of said A. B., and annexes hereto his consent duly acknowledged; that your petitioner, adding allegations as to responsibility like those of Form No. 342 (above).]
IV. That no previous application for the appointment of a guardian ad litem herein has been made [except, etc.].
WHEREFORE your petitioner asks that he [or, that F. G., who resides at in this State, whose consent is hereunto annexed, and who is a competent and responsible person as appears by his affidavit also annexed] may be appointed guardian ad litem of said A. B., to prosecute said action for him. [Date.]
[Signature.] [Verification as in Form No. 193, p. 326. If the proposed guardian is another than the petitioner, add his consent, duly acknowledged, as in Form No. 341, and his affidavit of competency, as in Form No. 342.]
37 If not by guardian, state facts as to whether there is any guardianship. See Form No. 340 (above).
FORM No. 345. Notice to guardian, or custodian, where the application is by relative or
In the Matter of the Appointment of
a Guardian ad litem for N. B., an Infant.
Please take notice, that on the annexed petition [consent and affidavit), an application will be made to this court at a Special Term thereof, to be held [or, to Mr. Justice J. K., one of the justices of the court] at 19 at o'clock in the noon, for an order appointing F. G., or some other competent and responsible person, guardian ad litem of A. B., infant above-named, for the purposes of the action referred to in said petition. [Date.]
[Signature.] [Address:] To
IV. GUARDIAN AD LITEM IN PARTITION.
FORM No. 346.
The petition of A. B., an infant, respectfully shows to this court:
I. That he was of the age of [fourteen] years on the day of
II. That your petitioner is about to commence an action in this court against Y. Z. and others, for partition of lands, of which he and said parties are joint-tenants [or, tenants in common]; that such action is to be brought pursuant to leave granted by the sur
38 Under N. Y. Code Civ. Pro., $ 470, if the application is made by relative or friend, serve on the general or testamentary guardian of the infant, or if he has none, then on the person with whom he resides.
39 Of course if the infant is under fourteen, application must be made on his behalf.
Partition cannot be maintained in
the name of an infant, whether as sole or coplaintiff, without leave of court (N. Y. Code Civ. Pro., 8 1534; for Forms, see pp. 568-571, supra), and a purchaser in an action brought without leave will not be compelled to take title. Struppman v. Muller, 10 Abb. N. C. 142, 52 How. Pr. 211.
40 This application must be to the court. N. Y. Code Civ, Pro., § 1535.
rogate of this county, by an order duly made at
on the day of
19 a certified copy of which order is hereto annexed. [Continue as in Forms 340 and 344.] WHEREFORE your petitioner asks that said M. N.,
be appointed his guardiau ad litem, for the purposes of such action. [Date.]
[Signature.] [Annex consent and affidavit of proposed guardian.]
[Verification, and consent of guardian, and affidavit of competency, as in Forms Nos. 193, 341 and 342.
FORM No. 347.
Bond of guardian ad litem for infant plaintiff in partition.41 Know all men by these presents, that we, M. N., 42 residing at in the of and county of
and E. F. and G. H., respectively residing at No. street and No. street in the same place, are jointly and severally held and firmly bound unto the People of the State of New York,43 in the penal sum of
dollars, for which sum well and truly to be paid, we bind ourselves, our heirs, executors, administrators, and assigns, jointly and severally, firmly by these presents. Sealed with our seals, and dated the
Whereas, by an order duly made by the
court on the
said M. N. was appointed guardian ad litem of A. B., infant, of
to conduct, on the part of said infant, an action to be instituted on his behalf (together with
co-plaintiffs], for a division and partition, or sale, of the real estate mentioned in the petition upon which said order was made; and said guardian ad litem being required by said order to give the security hereby given:
Now, THEREFORE, the condition of this obligation is such that if the said M. X. shall faithfully discharge the trust committed to him as such guardian, and render a just and true account of his guardianship in all courts and places when thereunto required,
41 For the rules applicable to Bonds, see pp. 25-33 of this volume.
42 The guardian ad litem must join, under N. Y. Code Civ. Pro., $ 1536; but one surety is enough in partition, unless the court requires more.
43 Unuer N. Y. Code Civ. Pro., $ 1536, the bond of a guardian ad litem in partition must run to the people.