Edsall v. Vandemark

39 Barb. 589 | N.Y. Sup. Ct. | 1863

By the Court,

Campbell, P. J.

On the main question of fact-, as to negligence, there is no ground for disturbing the verdict. The charge of the judge was not objected to, and there were no requests to charge-. We must presume the judge laid down the law correctly. The motion for a non-suit, was properly denied. The evidence tended to show that the defendant was chargeable with gross if not with willful negligence. He drove his horse, on a trot, among a number of children just out of school, and with a wind beating in the children’s faces. It was exceedingly doubtful, to say the least, whether there was negligence on the part of the plaintiff which in any degree contributed to his injury. Under what we know to be the ordinary, and which we are bound to presume was the actual charge of the judge, the jury must have found that the defendant’s negligence tvas the sole cause; unless they may have found that the defendant was grossly and willfully negligent. In either view there was no error.

But the defendant alleged in his answer, and offered to prove, on the trial, that he had settled the action, with the guardian ad litem, and he claimed that by virtue of such settlement he was entitled to a discontinuance-. It is unnecessary to consider whether a guardian ad litem might consent to a discontinuance of the action, leaving the subject matter of the action still in existence and to be adjudicated in another action either instituted by himself, by another guardian, or by the infant on arriving at age. The question raised is, can he of his own mere motion make an absolute settlement of the whole matter in controversy ? I am clearly of the opinion that he cannot. The only source of power, for the guardian ad litem, is the court. The appointment is made not by the infant but by the court, or a judge thereof. He is appointed to prosecute the action, and he may employ the ordinary and customary means to bring it if possible to a successful termination. The authority conferred upon him is to prosecute, not to settle; to obtain for the infant an adjudication as to his rights—not to barter away those rights in such manner as the guardian may choose. Certainly no such settlement could be binding on the infant, except made with the express sanction of the court.

If we were to consider the guardian in the light of an agent appointed to enforce a claim, or collect a debt, as such he is not, unless some special authority beyond the ordinary r,each is given to him, clothed with authority to commute the debt for another thing, or to compound the debt, or to release it upon composition. (Story on Agency, § 99.) The employment of an attorney is “to prosecute or defend the suit in question,” and he cannot, under his general authority, compromise his client’s debt. He may discontinue an action, and he may enter into an agreement to discontinue, but he cannot, without special authority compromise the debt, or relinquish or settle the subject matter of the action. (8 John. 361; 10 id. 220, and other cases cited in Graham’s Practice, under the head of “ authority of an attorney’)

This action illustrates the necessity of confining the question within the strict limits of his authority. By the culpable negligence of the' defendant, if not by his willful negligence, the plaintiff—a lad of about fifteen years of age—lost an eye. His guardian, appointed as his friend to prosecute the action, agreed to settle the matter for one dollar, and the plaintiffs’ costs. The jury awarded to the plaintiff $475. This I think was a small verdict. Such a settlement was a fraud, as against the infant, and should not be permitted to stand, even if the guardian had been clothed with authority to make it.

[Broome General Term, May 12, 1863.

Campbell, Parker and Mason, Justices.]

The order made at special term denying a new trial should be affirmed with costs, and there must be judgment on the verdict.