Ambrosius v. Ambrosius — 167 A.D. 244

Majority

p. 244

Marie Marjorie Ambrosius, an Infant, by Joseph B. Barnes, Her Guardian ad Litem, Respondent, v. Iva H. Ambrosius, as Administratrix, etc., of Herman Z. Ambrosius, Deceased, Appellant.

Second Department,

April 1, 1915.

Headnote

Practice — discontinuance of suit by infant.

Where in a suit by an infant no testimony has been taken, no costly preparation for trial incurred, and no hearing had on the merits, and the defendant has sought no affirmative recovery, but has claimed that plaintiff has an adequate remedy at law, an order granting leave to discontinue was within the discretion of the court at Special Term.

Strong grounds must be shown to move the court to force an infant to carry on a litigation which is clearly against her interests.

p. 245

Appeal by the defendant, Iva H. Ambrosius, as administratrix, etc., from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 19th day of February, 1915, as resettled by an order entered in said clerk’s office on the 25th day of February, 1915, denying her motion to vacate an order discontinuing this action.

W. B. Symmes, Jr., for the appellant.

J. Frederick Eagle [C. D. Francis with him on the brief], for the respondent.

Had the duty to affix a transfer stamp to her father’s declarations of trust been on the infant plaintiff, more weight could be given to defendant’s argument that, despite her motion to discontinue, her suit should go on. But a gift of securities by a father to a child non sui juris imposed on her no such duty. This was not only from her incapacity, but because the duty was laid on the person making the sale, transfer or agreement (Tax Law [Gen. Laws, chap. 24; Laws of 1896, chap. 908], § 317, added by Laws of 1905, chap. 241, as amd. by Laws of 1906, chap. 414; now Tax Law [Consol. Laws, chap. 60; Laws of 1909, chap. 62], § 272, as amd. by Laws of 1911, chap. 352, and Laws of 1912, chap. 292), who was the father and plaintiff’s natural guardian. Should such a trust fail in equity because of the father’s omission to stamp the papers he had made ? The State law declares a rule excluding the receipt in evidence of such unstamped transfer, but it is not clear that the statute annuls it. (Tax Law [Gen. Laws, chap. 24; Laws of 1896, chap. 908], § 323, added by Laws of 1905, chap. 241; now Tax Law [Consol. Laws, chap. 60; Laws of 1909, chap. 62], § 278; Bean v. Flint, 204 N. Y. 153 .) Strong grounds must be shown to move the judicial discretion to force an infant to carry on a litigation which it is clearly against her interests to continue.

Where no testimony has been taken, no costly preparation for trial incurred and no hearing has been had on the merits, we cannot say that the learned court below, in granting

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the infant leave to withdraw, violated any rule of equity practice, or abused its discretion. Defendant had sought no affirmative recovery. Instead of joining in the relief asked, she stood in an attitude of resistance, and urged that plaintiff had an adequate remedy at law. With an infant so confronted, a court of equity would forget its traditions of care and protection of its infant wards if .it denied leave to discontinue. If the infant had the requisite citizenship, her suing in the Federal courts is by virtue of a right conferred by Congress, which this court cannot stop, abridge or impair.

The order refusing to vacate the ex parte order of discontinuance is, therefore, affirmed, with ten dollars costs and disbursements.

Jenks, P. J., Burr, Carr, Rich and Putnam, JJ., concurred.

Order refusing to vacate the ex parte order of discontinuance affirmed, with ten dollars costs and disbursements.

Cases cited

Bean v. Flint 204 N. Y. 153 N.Y. 1912-01-16 p. 245