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WHEREAS, by an order of the Court, entered on the
day of ,19 [or, by an order made by IIon. J. K., justice of the
Court, dated the day of 19 ], the above bounden M. N. was duly appointed to appear as the guardian ad litem of [name of infant] for the purposes of [if for an infant defendant] defending an action theretofore begun against said [infant, and others] by [plaintiff] for [specify object briefly].
And WHEREAS [here recite recovery which is to be received by the guardian].
Now, THEREEORE, the condition of this obligation is such, that if the said J. V. shall faithfully discharge the trust committed to him as such guardian in respect to said money and property, and account for and apply the same under the direction of the court, then this obligation is to be void; otherwise to remain in full force and effect.
[Signatures and seals.] Signed, sealed and delivered in presence of
[Signature of witness]. [Acknowledgment or proof as in Forms Nos. 1 and 6, pp. 3, 5; affidavits of sufficiency, and approval by justice of the court in Forms Nos. 252, 255, pp. 479, 480. File with the clerk of the court.]
FORM No. 494. Affidavit to obtain confirmation of service on infant, and appointment of
guardian ad litem, nunc pro tunc.31 [Title of court and cause.] [Venue.]
M. N., being duly sworn, says that he is an attorney and counselor at law, of this court; that on the day of 19 , he was by order of this court appointed guardian ad litem of the above-named Y. Z., an infant defendant herein, and on the day of , 19 , [filed his bond, approved by one of the justices of this court, as such guardian, and at the same time he] put in his answer as guardian for said infant, and has ever since appeared in all the proceedings taken herein, has attended faithfully to his duties as such guardian, supposing his appointment to have been regular, and has protected and watched
which title founded on these proceedings was sustained.
over the interests of the said infant. That it is now alleged for the first time that the service of the summons and complaint on said infant was informal. Deponent fears that unless an order of appointment be now made, “nunc pro tunc,” making and confirming his present appointment as such guardian, the proceedings herein may be considered irregular. [Deponent further says, that all the allegations in his affidavit of sufficiency dated the day of , 19, on the original application, are true now and were true when said affidavit was made.] [Jurat.]
[Signature.) [Annex other papers showing a subsequent due service upon the
infant defendant, and supporting application.]
FORM No. 495. Order confirming service on infant, and re-appointing guardian ad litem, nunc
At a Special Term [etc. See p. 255]. [Title of cause.]
On reading and filing the annexed petition of V. Z., the mother of the defendant, Y. Z., an infant of the age of years, who resides with her said mother, and on reading and filing the consent of M. X., duly acknowledged, and proof by affidavit that said
M. N. is a competent and responsible person, and also the affidavit of said M. N., verified the day of , and it appearing that the service of the summons and complaint on said infant heretofore made was alleged to be insufficient and defective, and that such defect has been now rectified and due service made, and that no rights of said infant have been prejudiced;
ORDERED, that M. N. be and he hereby is appointed guardian ad litem to appear for and protect the rights of said infant [name] in this action; and that this order be entered and filed “nunc pro tunc ” as of the day of
, 19 , the date of the original order appointing said M. N. guardian ad litem of said infant Y. Z., and that the answer served and the bond filed by the said M. N. as such guardian on the day of 19, be taken and received as if this order had been then made and entered, and said answer had been served and said bond approved and filed in pursuance of the order now made.
Enter: [signature of judge by initials of name and title.]
FORM No. 496.
At a Special Term [etc. See p. 255). [Title of cause.]
The plaintiff having moved upon an order to show cause why all the proceedings herein should not be confirmed and stand as to the infant defendant, Y. Z., after hearing A. T., attorney for the plaintiffs in support of said motion, and M. N., guardian ad litem for such infant defendant, having appeared and submitted the interests of said infant to the protection of the court; now, on motion of A. T., plaintiff's attorney,
ORDERED, that all the proceedings previously had herein be and they hereby are confirmed as to said infant defendant Y. Z., and that the same stand in all respects as if the order of appointment of said guardian ad litem, dated the day of 19 , and filed with the clerk of this court, had been properly and regularly made and entered after due service of the summons upon said defendant. Enter: [signature of judge by initials of name and title.]
FORM No. 497.
Resignation of guardian ad litem. [Title of court and cause.] To the
Court: I, the undersigned M. V., respectfully show that by an order of this court I was appointed guardian ad litem of the infant defendant, J. M. G., in the above-entitled action, and have acted as such guardian since said appointment. [Here state ground of resigning, for instance] Having removed from the city of
, where said infant resides, and which said city and county is the place of trial of this action, I hereby respectfully resign as such guardian, and ask the court to appoint in my place and stead F. S. P., Esq. of the city of , counselor at law, or some other suitable and proper person (such as said infant may request, he being now over fourteen years of age). And I hereby consent to any such appointment and waive notice of any application to the court therefor.
[Date.] [Signature of] Guardian ad litem for
[Apply on petition, annexing resignation, and asking appointment of a guardian ad litem ; see Forms for original appointment. Present also consent of guardian ad litem's attorney to the substitution of an attorney to be chosen by such person as the court may appoint guardian ad litem.]
PROVISION AGAINST COSTS. ARTICLE I. LEAVE TO SUE OR DEFEND AS A POOR PERSON.
II. SECURITY FOR costs.
LEAVE TO SUE OR DEFEND AS A Poor PERSON. [The principles relating to the power of the court, and the practice, have been already stated in connection with plaintiff's application before commene ing his action; p. 542. The following Forms relate only to applications after action commenced.]
FORMS. 498. Petition for leave to continue 500. Affidavit to move to vacate leave suit as a poor person after
to sue, etc. suit brought without leave. 501. Order vacating leave to sue as 499. Petition for leave to defend as
a poor person. a poor person.
FORM No. 498. Petition for leave to continue action as a poor person, after action begun
without leave.32 [ Title of court and cause.] To the [Supreme Court of the State of New York]:
The petition of A. B., the plaintiff above named, respectfully shows:33
I. That your petitioner resides at , within the State of New York.
II. That your petitioner has commenced an action against the above named defendant, Y. Z., to recover [state character of cause
32 Prior to the amendment of 1904. to $ 3268 of the Code, an infant suing by his guardian ad litem was required to give security for costs. To prevent giving such security application was commonly made on behalf of the infant for leave to sue as a poor person; and if not obtained before action commenced, such an application could be made in connection with a motion to vacate a previous es parte order requiring security.
The only benefit obtainable under the present condition of the statute, is to relieve the plaintiff from par. ment of the comparatively small amount of fees required up to trial.
See, generally, the Forms and notes in connection with obtaining this leave prior to action commenced, Form 328, et seq.
33 If the action is on behalf of an infant, and he is under fourteen, the guardian should make this petition.
of action] as appears by the complaint herewith exhibited. [State the condition of the cause, so as to show that there has been no unreasonable delay.34]
III. That your petitioner is not worth one hundred35 dollars, excepting the wearing apparel (and furniture] necessary for himself (and his family36], and excepting the subject-matter of the action,37 and is unable to prosecute such action unless admitted to do so as a poor person. [Circumstances of necessity appealing to the discretion of the court may here be added, and if possible shown to have arisen since action brought, for instance, thus:]
That your petitioner has no relatives in this country, and is obliged to earn a livelihood by working as a seamstress, nurse, or chambermaid; that your petitioner has for many months past been incapacitated from earning any money, owing to the injuries sustained as aforesaid, through the negligence of said defendant, and your petitioner has thereby become impoverished.
WHEREFORE, she asks leave to prosecute said action, as a poor person, against said defendant, and that the court will assign her attorney and counsel for that purpose. [Date.]
[Signature.] [Verification as in Form No. 193, on p. 326.]
FORM No. 499.
The petition of Y. Z., of , respectfully shows:
I. That the above-entitled action has been duly commenced, and is now pending in this court, against this petitioner, and involves his right, title, or interest in or to certain real [or, personal] property (or both], the object of said action being [here state facts sufficient to show the nature of the action, and to
34 For convenient forms for stating the condition of the cause, see Article II of this chapter, on Security for Costs.
35 The sum fixed by N. Y. Code Civ. Pro., $ 459.
36 Omit this clause if he has none.
37 This is the statutory condition. On general principles the appellant
must show that he is an object of charity. Isnard v. Cazeaux, 1 Paige, 39.
38 See, for principles affecting this application, Form 328 of this volume and text immediately preceding it.
39 The court in which the action is pending.