Page images

[or, testamentary] guardian [or, and that he has no general or testamentary guardian,3- or otherwise state what guardianship within the State he has].

II. That the above entitled action has been duly commenced in this court against your petitioner (or, if the petition is by guardian, relative, or friend, against Y. Z., above named] by A. B., [here state object of the action, and, if in partition say] for a partition or sale of real estate situate in

the value of which is, as your petitioner is informed and believes, about dollars, and said infant's interest therein is of the value of about

dollars. [If in the Supreme Court, state county where the action is triable.]

[If petitioner is not the infant, allege his character as guardian, relative, or next friend.]

III. That the summons herein was duly served" on your petitioner (or, on said Y. Z.] personally within this State [or, by publication, which service became complete] as prescribed by the Code of Civil Procedure on the

19.5 IV. That no previous or other application for appointment of a guardian ad litem to appear herein on behalf of your petitioner [or, said Y. Z.] has been made, to the best of your petitioner's knowledge and belief (except, etc.] V. That M. N. [your petitioner's uncle), who resides at No. street, in the town of

in this State, is worth, as your petitioner is informed and believes, over dollars over and above all just debt and liabilities, and is a competent and responsible person to become such guardian ad litem, as more fully appears by the affidavit of M. N. hereto annexed (or if the proposed guardian ad litem is the petitioner, may insert such allegations here.]

day of

[ocr errors]

3 See N. Y. Code Civ. Pro., § 471.

4 A guardian ad litem for infant defendant (except an infant resident in the State and temporarily absent) cannot be appointed before service of the summons has been made upon the infant personally or by substi. tuted service. Without such service, appearance for the infant by a guardian ad litem does not give jurisdiction. Ingersoll v. Mangam, 84 N. Y. 622; Varian v Stevens, 2 Duer, 635; Althause v. Radde, 3 Bosw. 410.

Compare N. Y. Code Civ. Pro., $ 473,
and Gotendorf 1. Goldschmidt, 8.5
N. Y. 110; and Mace v. Scott, 17
Abb. V. C. 100.

5 See paragraph 2, p. 834, and notes.

After the expiration of twenty days from the service of summons the infant may still apply, unless forestalled by an application by the adverse party. McConnell v. Adams, 3 Sandf. 728, 1 Code Rep. (N. S.) 114.

6 See p. 116, paragraph 84.

WHEREFORE, your petitioner asks that M. N. [or, that he] may be appointed such guardian ad litem, to appear and defend said action on his behalf [or, on behalf of said Y. Z.]. [Date.]

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

FORM No. 483.

Consent of proposed guardian ad litem.7 I, M. N., of

hereby consent to become the guardian ad litem of Y. Z. in the above action. [Date.]

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

FORM No. 484. Affidavit of proposed guardian ad litem to his competency., [Title of the court and cause.] [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, general guardian of Y. Z., above-named, who is an infant, or otherwise], and is fully competent to understand and protect the rights of Y. Z., the infant above-named, and has no interest adverse to that of said infant, and is not connected in business with the attorney or counsel of the adverse party, or of any of them (and if the appointment is for one of several defendants, add or of any co-defendants having an interest adverse to that of said infant). That he is of sufficient ability to answer to the said infant for any damages which may be sustained by his negligence or misconduct in defense of this suit; that he is worth over hundred dollars over and above all his debts and liabilities, and besides property exempt by law from execution, and that his property consists of [here specify it sufficiently to afford proof of above allegation). Jurat.]


7 Required by Code (iv. Pro. $ 472.

8 The omission of a guardian ad litem of infant defendants in fore. closure to acknowledge his consent to act as such guardian, as required by V. Y. Code Civ. Pro., § 472, is amendable under the general power of the court (Id., $ 723), by leave (on notice

to all parties) to amend the judg
ment-roll after the sale, by inserting
the acknowledgment nunc pro tunc.
Tobin c. Cary, 34 Hun, 431; Schelt
r. Cohen, 55 Hun, 207, 7 N. Y. Supp.
9 As
to qualifications,

see Gen. Rule No. 49.

[ocr errors]

on the

day of

FORM No. 485. Notice to guardian where the application is by relative or friend. 10 | [Title of court and cause.]

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 M. N. guardian ad litem of A. B., the infant defendant above-named, and directing him to appear and defend the action on behalf on said infant. [Date.]

[Signature.] [Address], To

[Serve on general or testamentary guardian, infant, or custodian.

FORM No. 486.
Order appointing a guardian ad litem for infant defendant.

At a Special Term [etc.12 See p. 255.] [Title of cause.]

On reading and filing the annexed petition of verified the day of

19 for the appointment of M. N. as guardian ad litem for the above-named Y. Z., an infant defendant herein, and the consent thereto of said M. N., duly acknowledged, and it satisfactorily appearing to the court [or, if a judge's order, to me by his affidavit, verified the

day of 19

that said M. N. is a competent and responsible person, and has no interest adverse to that of said infant defendant, and is not connected in business with the attorney or counsel for the plaintiff, or for any adverse party,13 [and if any notice was re

[ocr errors]

10 t'nder N. Y. Code Civ. Pro., 471, if the application is made by relative or friend, serve such notice on the general or testamentary guardian of the infant; or if he has none within the State, on the infant himself, if over fourteen and within the State; if under fourteen, on the per. son with whom he resides.

Failure to serve such notice, or to show whether the infant had any general or testamentary guardian, or with whom the infant resided, makes the proceedings defective. Van Williams 1. Elias, 106 App. Div. 288, 94 N. Y. Supp. 611.

11 In partition, the application must be to the court. N. Y. Code Civ. Pro., § 1535.

12 Except in partition, a judge's order is enough. And even in partition a judge's order is valid in the first district. Disbrow v. Folger, 5 Abb. Pr. 53.

13 An error in the court's determination in respect to the qualifications of the proposed guardian does not deprive the court of jurisdiction, or render the judgment against the infant defendant voidable; it may be corrected only by direct attack, by appeal or motion to vacate order. Parish v. Parish, 175 N. Y. 183.


[ocr errors]

quired,14 add, and proof of service of due notice of this motion

the general guardian of said Y. Z.- or, and after hearing S. T., of counsel for

the general guardian of said Y. Z.]: Now, on motion of Z. T., attorney for

ORDERED, that be and he hereby is appointed guardian ad litem for said Y. Z., and is hereby authorized and directed to appear and defend on his behalf in this action [in partition, cdd, on his giving bond according to law in the penal sum of dollars).

[If judge's order, date and signature of judge, with initials of title. If court order, Enter: with signature of judge, by initials of name and title.]

[File, and serve copy, with notice of filing on plaintiff's attorney.]

[In partition, bond" of guardian ad litem for infant defendant, as in Form No. 347,

P: substituting for the words, " to be instituted in his behalf," on p. , the words, the proceedings in an action heretofore brought against said infant [and others) for (etc.).

[Acknowledgment as in Form No. 254, on p. 479.]

[Affidavit of sufficiency and approval as in Forms Nos. 252, 255, pp. 479, 480].

FORM No. 487. Petition of relative of defendant of unsound mind for appointment of guard

ian ad litem.16
[Title of court and cause.]
To the

The petition of M. N., of respectfully shows:

I. That an action has been commenced in this court between the parties above named, by the issue and service of summons [and complaint] on the defendant Y. Z. [state mode of service and nature of action.]

[ocr errors]

14 See notes to preceding Form.

15 For the rules applicable to bonds generally, see pp. 25-32 of this vol


A clerk of the court, appointed guardian ad litem for an infant defendant in partition, although by Code Civ. Pro., $427, required to act, is not excused from giving security. Fisher v. Lyon, 34 Hun, 183. The bond is to be filed with the clerk

before the guardian ad litem in partition enters on his duties. $ 1536,

16 The Supreme Court can, by an ex parte order, made in an action, on the petition of a near relative, appoint for the purpose of such action a guardian ad litem of a person of unsound mind, where such unsoundness of mind is shown by affidarit, and although no commission de lunatico inquirendo has issued; and upon

II. That said Y. Z. is a lunatic, and totally incapable of putting in his answer, or conducting any business whatever (or, other degree of incapacity.].

[ocr errors]

III. That said Y. Z. is of full age, viz., about

years, and has no committee, and that he resides with your petitioner at who is his father, and he is under the petitioner's control and custody (or otherwise, according to the fact].

IV. That your petitioner [or, M. N., in the annexed affidavit mentioned) has no interest adverse to the rights of said Y. Z., and is not connected in business with the attorney or counsel of the adverse party.

WHEREFORE, your petitioner asks that he [or, said M. N.] be appointed the guardian of said Y. Z., for the purposes of this action, and for such other or further order as may be just. [Date.]

[Signature.] [Verification, consent and affidavit of competency of proposed

guardian, notice if necessary," and order, similar to preceding Forms. ]



FORM No. 488. Petition by or on behalf of plaintiff, for appointment of a guardian ad litem

for an infant defendant.18 [Title of court and cause.] To the

Court19 [or, to the Hon. J. K., one of the judges of the

Court]. The petition of A. B. shows:

I. That he is the [attorney for the] plaintiff in this action, which is brought for [here state briefly the object, for instance, thus:] the partition of lands in the county of

or a sale


proof that the lunacy does not exist, may vacate the appointment. Hunter 0. Hatfield, 12 Hun, 381. See, also, Prentiss v. Cornell, 31 id. 167, aff’d, 96 N. Y. 665; Faulkner v. M'Clure, 18 Johns. 134.

H. R. R. R. Co., 99 App. Div. 56, 90 N. Y. Supp. 657.

17 This application must be notice to the plaintiff, unless the lunacy of the defendant is alleged in the complaint. Heller v. Heller, 6 How. Pr. 194.

But after appointment of a committee, suit must be brought by him. If an infant is insane, a committee should be appointed, and suit brought by him.

See Callahan v. N. Y. C. &

18 Serve notice of application; see Form 485, and Code Civ. Pro., $ 471.

19 If in partition, apply to the court. N. Y. Code Civ. Pro., & 1535.

« PreviousContinue »