225 A.D. 343 | N.Y. App. Div. | 1929
In this action for a judicial accounting by testamentary trustees a petition was filed on November 14, 1928, seeking the appointment of William L. Cams as guardian ad litem for six infant defendants, four of whom were over fourteen years of age and two under fourteen. The Special Term made an order which recited “ that said William L. Cams is a competent and responsible person to act as guardian ad litem herein for the defendants, Karl Bernheimer and Inge Rheinstrom, infants under the age of fourteen years; and Richard Bernheimer, Franz Bernheimer, Kurt Bernheimer * * * and Lore Amalia Bernheimer, infants over the age of fourteen years, and has no interest adverse to said infants, and is not connected in business with the counsel or attorneys for the plaintiffs or for any other party to this action, except that he has heretofore * * * been appointed guardian ad litem for the defendants, Nell Halle and Anne Halle, infants under the age of fourteen years, * * * whose rights and interests in this action * * * are similar to the rights of the aforesaid Karl Bernheimer and other infants named above.” The order then appointed Cams as guardian ad litem for all of the infants over fourteen years of age, but refused to appoint him for the two infants under fourteen. The petitioners, fathers of the infants under fourteen, appeal from so much of this order as refuses to appoint Cams as guardian. They also appeal from orders denying their motions to modify the orders as entered.
The petition for Cams’ appointment was verified by the fathers of the respective infants involved. It appears without contradiction that one father had no interest whatever in the accounting and that the other father had an interest identical with and not adverse to the contingent interest of his child. There is no claim that Cams’ nomination was in any way suggested by any of the accounting parties or on their behalf. On the contrary, it affirmatively appears that his appointment was sought because he was the personal counsel in New York for a near relative of the petitioners, who resided abroad. His personal qualifications are unchallenged. He is a lawyer in good standing, without interest adverse to the infants, and, as has been said, is already guardian ad litem for a number of infants both over and under the age of fourteen. In refusing to
It appears on the present application that Mr. Cams is not personally known to the parents of the infants, but was nominated upon the suggestion and recommendation of Charles L. Bernheimer, one of the defendants. It does not appear whether Charles L. Bernheimer’s interest in the estate is adverse to that of the infants. We have concluded, therefore, to remit this matter to the Special Term for further hearing and investigation and redetermination in accordance with this opinion.
We approve the conduct of the guardian ad litem named in the order in presenting the matter to tMs court, and the reversal of the order is based upon no criticism of his conduct. So far as appears, he is in every way qualified and a proper person to represent and protect the interests of the infants. »
The order appointing the guardians ad litem, so far as appealed from, and the order denying the modification thereof, should be reversed, without costs, and the motion remitted to' the Special Term for further proceedings in accordance with this opinion.
Present — Dowling, P. J., Merrell, Finch, McAvoy and Proskauer, JJ.
Orders so far as appealed from reversed, without costs, and the motion remitted to the court at Special Term for further proceedings in accordance with opinion.