186 Misc. 337 | N.Y. Sup. Ct. | 1946
There are presently pending before this court three applications to procure judicial approval of compromises of infants ’ causes of action. In two of these neither the guardian ad litem nor the infant are represented by counsel and papers submitting the proposed settlement to the court have been prepared by attorneys retained at the instance of defendants’ insurance carriers and who aré to be paid by those companies and in one, the guardian is represented by counsel of his own choosing.
I am constrained to set forth my views as to the propriety of this procedure in view of the recent decision in Bose v. Wehrli (186 Misc. 325). Bule 294 of the Buies of Civil Practice, as amended in 1940, provides in part as follows: “ If the infant and his guardian are not represented by an attorney, the papers required for the application may be prepared by the attorney for the defendant and shall state that fact, the terms of the proposed settlement and the facts with reference to the cause of action, but such attorney shall make no recommendation in reference to the proposed settlement. The court or judge under such circumstances shall make a full examination into all the facts regarding the reasonableness and propriety of the proposed settlement, and may refer the matter to an oEcial referee for investigation and report thereon.” After referring to the jurisdiction of the Supreme Court over infants and discussing various evils which he fears are inherent in the situation, the court in the case cited (186 Misc. 325, 334, sufra) concludes that the amendment “ is contrary to the common law, not supported by any statute, and therefore, not enforeible.” I am unable to agree with this reasoning.
While it is not necessary in determining the validity of the rule to express an opinion as to its wisdom, I may say that it
Section 83 of the Judiciary Law confers upon a majority of the justices of the Appellate Divisions in the four departments the power to adopt, amend or rescind any Rule of Civil Practice. While such rules cannot enlarge or abridge rights conferred by
My researches have disclosed no statutory or constitutional provision to which the 1940 amendment to rule 294 is repugnant, and it is my opinion that it is in all respects valid and effective. When such a rule is adopted, it becomes the law for the court as well as for the citizens upon whom it was designed to operate, and we have no more power to disregard it than we should have to disregard the force of a statute in determining, the rights of individuals thereunder (Matter of Moore, supra).
I therefore conclude that these applications are duly authorized and regular. The settlements referred to, as increased by court intercession, are reasonable and proper and will be approved. Orders signed.
In the interests of justice the court has omitted the appearances of counsel in these cases.