3 N.Y.S. 396 | N.Y. Sup. Ct. | 1888
It was conceded upon the argument of these motions that • each was subject to the application of the same legal principles, and they will therefore be considered as one. It appears quite satisfactorily from the mo- ' tion papers that Thomas H. Bennett, Esq., who is an attorney and officer of ' this court, was duly appointed guardian ad litem for the defendant Herman H. Van Voorhis, who, at the time of such appointment, wras an infant, and ' that such appointment was regularly made upon the application of the plain"tiff in the action after the infant had been afforded an opportunity to select his own guardian. It further appears that after the appointment of Mr. Bennett had been thus made he applied himself diligently and faithfully to the preparation of the case for trial, acting in conjunction with the attorney •of record for the defendant Herman Van Voorhis, the father of Herman H. Van Voorhis. He was associated upon the trial with such attorney, and rendered valuable service in behalf of his ward. The action was brought against the defendants to recover damages for an assault and battery committed by •them upon the person of the plaintiff, and was tried at the Ontario circuit in .May last. At the close of the trial, and while both defendants, as well as the •attorney for Herman Van Voorhis, were in court, the guardian applied to ’the court for an order fixing his compensation for the services he had rendered the defendant Herman H. Van Voorhis. The court thereupon notified such guardian, as well as the attorney for Herman Van Voorhis, that he would hear the application at a subsequent time and place, which were then named. At the time and place thus fixed upon, the guardian furnished the court with the affidavit specified in rule 50, and an order was thereupon made, granting him an allowance of $50 as compensation for the services
While the question as to the right of the court to fix the compensation of a. guardian ad litem in an action of this character, where there is no fund in court, is one which does not appear to have been expressly adjudicated, yet a careful reading of the rule in question would seem to indicate that it was-designed to embrace all actions and proceedings in which it became necessary for the court to call upon one of its officers to act as a. guardian or next friend of an infant defendant. Indeed, the language of the rule is so clear and explicit, that no other construction can be given to it, for it reads: “ It shall be, the duty of every attorney or officer of the court to act as the guardian of any infant defendant, in any suit or proceeding against him, whenever appointed for that purpose by an order of this court; and it shall be the duty of such guardian to examine into the circumstances of the case, so far as to enable him to make the proper defense, when necessary for the protection of the rights of the infant; and he shall be entitled to such compensation for his services as the court may deem reasonable.” And this language is substantially the same as that employed by the old court of chancery in its rule Ho. 143. How, while it is true that the court has no fund within its jurisdiction out of which it can direct compensation to be paid, it is equally true that the infant is its. ward, whose interests it is bound to protect, and to that end it will see that all proper steps and precautions are taken. Therefore it follows that the court may direct one of its officers to act on behalf of the infant, “to examine into-the circumstances of the case, so far as to enable him to make the proper defense, when necessary for the protection of the rights of the infant.” As has been well said by a recognized authority upon the subject, the court is-extremely anxious to encourage to every possible extent whoever will stand forward in the character of next friend on behalf of infants; and will therefore, whenever it can be done, allow the next friend the costs of any proceeding instituted by him for the infant’s benefit out of the infant’s estate, provided he appears to have acted in good faith for the benefit of the infant. 2' Barb. Oh. Pr. 207. If, therefore, the infant is a ward of the court, ando as such is entitled to its protection, even to the extent of the appointment of' one of its officers as his next friend or guardian, there is no good reason why the court should not require the infant, out of his estate, where he has any, to make proper compensation to the officer who has thus befriended him and. protected his interest. The attorney, when he accepts the trust which is thus, imposed upon him by the order of the court, undertakes to manage the case on behalf of his infant ward with care and fidelity, and if, in any case, the»
The order in question was an adjudication by the court between the guardian and his ward, so far as the question of compensation is concerned, and the amount thus fixed is a claim against the estate of the infant, for the collection of which the Code provides a suitable remedy. Code Civil Proc. §§ 15, 779. Such being the case, the guardian must avail himself of that remedy, .and, in the opinion of the court, cannot proceed against the defendants for a .contempt in case of their refusal to pay upon his demand. It was not the design of the court at the time the order in question was granted to charge the defendant Herman Van Yoorhis with the payment of the guardian’s compensation, nor does the argument of the learned counsel upon this application impress the court with the idea that he can be thus charged.
Por the reasons thus stated I am forced to the conclusion that the motion ■to vacate the order should be granted, so far as the defendant Herman Yan Yoorhis is concerned, and denied so far as it affects the defendant Herman H. Yan Yoorhis, and that the motion to punish for contempt should also be denied; but, inasmuch as these motions present somewhat novel questions for the consideration of the court, concerning which, as has already been suggested, there appears to have been no adjudication, no costs are allowed to .either party.