10 Misc. 546 | New York City Court | 1894
When the plaintiff was about six years old both of her parents died, leaving her and two brothers surviving them. She lived first with her brother Adam Strohlein, but he soon died, and then her brother John Strohlein, took her, at the age of about seven years, to his home and supported her till she was eighteen, providing her with clothing and all the necessaries of life. He was a poor man and owned with his sister in common an equity in a piece of real estate of the net value of $942.44, making the share of each $471.22. When plaintiff was nine years old her interest in this real estate was sold, because she was in absolute need of it for her support, under infant proceedings instituted for that ■purpose. John Strohlein, her brother, was appointed her .guardian ad litem therein and received her net share of $471.22, giving the usual bond for the faithful discharge of Lis trust, with two sureties, viz., William Noll, the defendant Lerein, and one John "F. Mellow, who is now dead. John Strohlein died in October, 1889, and this action on his bond was commenced in the spring of 1890 to recover the said sum of $471.22, with interest from the time John Strohlein, her
The defendant’s first defense was that he could not be sued till there was an accounting between the guardian or his representative and the ward. Let us assume, for the time being, that an action at law could be maintained without such accounting, under the authority of Long v. Long (142 N. Y. 545); then we are confronted with the second defense and the question as to whether any error was committed in the trial thereof to the injury of the defendant. This defense was that the guardian was entitled to an allowance for his expenditures in the support of the child while she was too young to support herself. The trial court held that such an allowance should be made for the period subsequent to the guardian’s appointment, but not for that prior thereto. To this limitation an exception was duly taken. John Strohlein was the natural guardian of this child, and there is no question that he maintained and supported her till she was old enough to do so herself, furnishing her with all the necessaries of life. There was no order authorizing the guardian Strohlein to use this money for the support of the child, but it has been frequently held in this state that if the expenditures made by a guardian for the support of his ward were “ such that they would have been authorized by the court if the application had been made in advance of paying out the money,” then they should be allowed in an action or proceeding where the amount due the ward is involved. The plaintiff, while an infant of very tender years, was without means except her equity in this real estate, which realized a net sum of $471.22. This money could have been devoted to no better purpose than to maintain her in a decent home under good influences. The law provides for just such a case. It authorizes the court to direct the sale of an infant’s real estate where the personal property and the income of the real estate are “ together insufficient for the payment of his debts or for the maintenance and the necessary education of himself.” Code Civ. Proc. § 2348, subd. 1. An infant’s estate is liable for
The judgment and order reversed and new trial ordered, with costs to abide the event.
Osborne, J., concurs.
Judgment and order reversed and new trial ordered, with costs to abide event.