« PreviousContinue »
thereof, if partition cannot be had (and if the action be partition, state approximate value of the interest of the infant defendant in question]. II. That the defendant Y. Z. is an infant of
years of age on the day of
last, and that due personal service of the summons within the State was made upon him on the day of last, as appears by the annexed affidavit of M. N. [Or, if the service was by publication, show when it was complete.]20
III. That [if infant be over fourteen, say, more than twenty days have elapsed since such completed service, and said infant defendant has not applied for the appointment of a guardian ad litem herein.
IV. [State facts as to residence and guardianship, for instance, thus:] That said infant resides [with his mother, W. 2., a widow] at No.
, and has not, to the best of the knowledge and information of this deponent any general or testamentary guardian in this State (or otherwise state what guardianship the infant has].
WHEREFORE, the plaintiff asks that some competent or suitable person be appointed guardian ad litem for said defendant, and be authorized and directed to appear and defend the action in his behalf, and for such other and further relief as may be just.
[Signature.] [Verification as in Form No. 193, p. 326.] [Notice of application to guardian, infant, or custodian as in Form 485.]
FORM No. 489. Another Form:- For appointment of guardian ad litem for infant defendant
resident and absent.21 [Title of court and cause.]
To the Court.22
I. That he is [the attorney for] the plaintiff in this action, which is brought for [here briefly state the objects, etc.; see last Form], and that [here indicate the condition of the cause, as, for instance, that] the summons and complaint have been personally served on all the defendants except Y. Z. II. That the defendant Y. Z. is an infant of
20 See paragraph 2, p. 834, supra, and notes.
21 The provisions of the section (8 473), authorizing this method of service, must be strictly followed.
See Uhl r. Loughran, 4 N. Y. Supp. 827, 16 Civ. Pro. Rep. 387.
22 The order here applied for is only made by the court. N. Y. Code Civ. Pro., $ 473.
years of age, and resides at , in the county of , within this State.
III. That, as your petitioner is informed and believes, said defendant is now temporarily absent from the State. Your petitioner has made due and diligent inquiry [here state what efforts have been made, and what information had as to residence and sojourn], and is informed by , and believes that said Y. Z. left this state in last, and is temporarily sojourning with his uncle W. Z., at St. Augustine, in the State of Florida, and may be expected to return in May next, and not before; and that the post-office address of said defendant, and of said W. Z., is St. Augustine, aforesaid.23
IV. That as deponent is informed by the mother of said Y. Z., said Y. Z., when within this State, and up to the time of leaving it, upon said temporary absence, was living with and under the care of V. Z., his mother, a widow, at No. , street, in
her residence aforesaid; and that he has not, to the best of the knowledge and information of this deponent, obtained from Y. Z.'s mother any general or testamentary guardian [or otherwise state what guardianship the infant has24], and no guardian ad litem has been appointed in this action.
V. That no previous application [etc. See Form No. 482.]
WHEREFORE, the plaintiff asks that the court make an order designating and appointing some suitable and competent person, to be the guardian ad litem of said Y. Z., for the purposes of this action, unless the said Y. Z., or some other person in his [or, her] behalf, procures a guardian ad litem for such purpose, to be appointed within days after service of a copy of such order upon him [or, her]. [Date.]
[Signature.] [Verification as in Form No. 193, p. 326.]
[Consent as in Form No. 483, p. 838.]25
[Affidavit of sufficiency as in Form No. 484.] 23 For other allegations adapted to a mode of service suited to give different cases, see forms at pp. 672, notice. 673, etc.
25 It is doubtful if a consent or 24 The affidavit should disclose the affidavit is necessary until order circumstances of the infant sufli- absolute. See Schell 0. Cohen, 55 ciently to enable the court to direct Hun, 207, 7 N. Y. Supp. 858.
FORM No. 490. Order appointing guardian ad litem for defendant unless the defendant
applies within a limited time.
At a Special Term [etc. See p. 255.] [Title of cause.]
On reading and filing the petition of the above-named plaintiff, A. B., verified the day of
, 19 , for the appointment of a guardian ad litem for the defendant Y. Z.; and the affidavit of C. D., verified the day of , 19 , and the consent of M. V. ;26 and on motion of A. T., plaintiff's attorney:
ORDERED, that M. N. be and he hereby is appointed guardian ad litem of the defendant Y. Z., for the purposes of this action, unless he [or, she], or some one in his [or her] behalf, procures such a guardian to be appointed as prescribed by law, within
days after service of a copy of this order. And it is further ordered, that this order be served [here insert directions of the court, for instance] by delivering a copy to V. Z. [the mother], mentioned in said petition, or if she be absent from her residence in
, by leaving a copy thereof at her said residence, with some person of proper age, if upon reasonable application admittance can be obtained, and such a person found who will receive the same; and if admittance cannot be so obtained, nor such a person found, by affixing the same to the outer or other door of said V. Z.'s residence, and by depositing another copy thereof, properly inclosed in a postpaid wrapper, addressed to her at her place of residence, in the post-office at said [the place where she resides] ; and that the same be also served by depositing in the post-office at [the residence of the plaintiff's attorney], on or before the day of the service of this order as hereinbefore directed, a copy of this order, and of the summons and complaint herein, properly inclosed in a postpaid wrapper, addressed to said Y. 2. in the care of said W. Z., at
in county, and State of Enter: [signature of judge, by initials of name and title. ]
26 It was considered in Schell v. Cohen, 55 Hun, 207, 7 N. Y. Supp. 858, that the consent of a guardian
ad litem nisi was not required, but the point was not presented for decision.
FORM No. 491. Affidavit of service of order appointing guardian ad litem nisi; and of
default. [Title of court and cause.] [Venue.]
A. T., being duly sworn, says:
I. That he is the managing clerk in the office of A. T.] the attorney for the plaintiff herein.
II. That, on the day of , 19 , an order, of which a copy is annexed, was duly entered and filed, together with the petition, affidavits, consent, and acknowledgment of consent therein referred to, in the office of the clerk of
III. That, on the day of , 19 , a certified copy of the annexed order was duly served pursuant to the directions therein contained as appears by the annexed affidavit of E. F. [or set forth particulars of service showing compliance in detail. See Form No. 371, p. 642, of this volume].
IV. That although more than days have elapsed since such service of said order, no application has been made by, or on behalf of, said Y. Z. for the appointment of a guardian ad litem, to the best of deponent's knowledge and belief.
V. That no previous application (etc. See Form No. 482]. [Jurat.]
[Signature.] FORM No. 492.
At a Special Term [etc. See p. 255]. [Title of cause.]
On reading the order entered herein on the day of 19 , for the appointment of a guardian ad litem for the infant defendant Y. Z., if no application on the part of or in behalf of said Y. Z. be made within days after service thereof; and on reading and filling the annexed affidavit[s] by A. T. [and E. F.], verified the day of , 19, showing due service of said order as therein provided and it appearing therefrom that no application on the part or on behalf of said defendant Y. Z. for the appointment of a guardian ad litem has been made and on filing the consent of M. N., duly acknowledged and it satisfactorily appearing to this court from his affidavit this day verified, 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; and on motion of A. T., plaintiff's attorney:
ORDERED, that said order of the day of , 19, designating V. N. as such guardian, be made absolute; and said M. N. be, and hereby is, appointed guardian ad litem for the defendant Y. Z., for the purposes of this action, and is authorized to appear and defend this action for him as such [if in partition, add: on his giving bond according to law in the penal sum of
dollars]. Enter: [signature of judge by initials of name and title.]
[In partition, file bond by guardian ad litem, and at least one surety, as in Form 347, substituting for the words “ to be institnted on his behalf," the words,“ the proceedings in an action heretofore brought against said infant (and others] for” [etc.”].
[Acknowledgment of bond as in Form No. 254, p. 479.] [Affidavits of sufficiency and approval, as on pp. 479, 80.]
III. PROCEEDINGS SUBSEQUENT TO APPOINTMENT.
FORM No. 493. Bond of guardian ad litem for infant party on receiving fund.28 KNOW ALL MEN BY THESE PRESENTS, that we, M. N. [naming the guardian ad litem], of [residence], and E. F. [naming surety], of , and G. H., of the same place], are held and firmly bound unto [naming the infant29], of , in the penal sum of
dollars (not less than twice the sum or the value of the property, to be received30, lawful money of the United States of America, to be paid to the said [name infant], his [or, her] executors, administrators or assigns; for which payment, well and truly to be made, we bind ourselves, our heirs, executors and administrators jointly and severally firmly hereby. Sealed with our seals. Dated the day of
, 19 27 See notes to Form 347.
Ry. Co., so App. Div. 53, 80 N. Y. 28 The guardian ad litem must give Supp. 233. security before he can receive any 29 The infant is to be the obligee. money or property of the infant, or N. Y. Code Civ. Pro., § 475; exeept enforce any judgment. N. Y. Gen. in partition. Id., & 1536, Rules No. 51, of 1984, and Code Civ. 30 N. Y. Code Civ. Pro., § 475. Pro., $ 474; Wileman v. Met. St.