Pierce v. Lee

36 Misc. 865 | City of New York Municipal Court | 1901

Schuchman, J.

The plaintiff, an infant, brought this action by his guardian ad litem, to recover moneys had and received from him by the defendant. The complaint was dismissed at the trial and judgment for costs rendered against the guardian. The defendant moved for an order directing the guardian ad litem, to pay the'amount of the judgment, and in default thereof that he be punished as for a contempt of court; the execution which had been issued has been returned unsatisfied. The ground of contempt is alleged to be that the guardian ad litem, induced the court to appoint him as guardian by alleging in his petition that he was pecuniarily responsible.

The court possesses the power in the exercise of proper discretion in case of abuse to require justice to be done in this regard, if an irresponsible guardian be appointed. Linner v. Crouse, 61 Barb. 289. Section 469 of the Code of Civil Procedure reads as follows: “ Before a summons is issued in the name of an infant plaintiff a competent and responsible person must be appointed to appear as his guardian for the purpose of the action, who shall be responsible for the costs thereof.” Section 3249 of the Code of Civil Procedure reads as follows: “ Where costs are awarded ag’ainst an infant plaintiff, they must be collected, by. execution or otherwise, from his guardian ad litem in like manner as if the latter was the plaintiff.” This was a modification of the preceding law, for by section 316 of the Code of Procedure it was declared that “ when costs .are adjudged against an infant plaintiff the guardian by whom he appeared in the action shall be responsible therefor and payment thereof may be enforced by attachment.” It seems' that the words in section 3249, “ or otherwise,” modified the power of the court to collect the costs from the guardian ad litem by a proceeding as for contempt. Miller v. Woodhead, 52 Hun, 121.

An execution against the property of the guardian having been issued and returned unsatisfied, the plaintiff can only proceed to an examination of the judgment debtor.

The order appealed from should be reversed, with ten dollars costs and disbursements.

Fitzsimons, Ch. J., and Delehanty, J., concur.

Order reversed, with ten dollars costs and disbursements.