In re Stewart — 48 N.Y.S. 999

Majority

p. 999

(23 App. Div. 17.)

In re STEWART et al.

(Supreme Court, Appellate Division, Second Department.

December 2, 1897.)

Headnote

Guardian Ad Litem—Right to Arpead.

A special guardian for an infant, appointed by the surrogate in proceedings before him for the judicial settlement of the account of proceedings of testamentary trustees, does not become functus officio by the rendition of a decree therein, and has the right to take and prosecute an appeal therefrom; and his duties and office continue until the final determination of any appeal from the surrogate’s decree.

Appeal from surrogate’s court, Westchester county.

p. 1000

In the matter of the judicial settlement of John A. Stewart and others, trustees of John B. Trevor, deceased. Application for leave to appoint a guardian ad litem to prosecute an appeal.

Denied.

Argued before GOODRICH, P. J., and CULLEN, BARTLETT, HATCH, and BRADLEY, JJ.

Geo. W. Wickersham, for appellant

E. D. Cowman, for respondent.

An ex parte application is made to the court for the appointment of a special guardian, or guardian ad litem, to take, perfect, and prosecute an appeal from a final decree of the surrogate of Westchester county. The petition alleges that the surrogate appointed a special guardian of certain infants interested in this proceeding before him; that such guardian appeared therein, and made objections to items in the account; and that afterwards the surrogate entered a final decree, from which the special guardian, a counselor of this court, advises that an appeal be taken. The application is denied on the ground that the special guardian appointed by the surrogate is not functus officio by the rendition of the decree. Code Civ. Proc. § 2573, provides that, where an appeal shall be taken from such a decree, “each party to the special proceeding in the surrogate’s court, and each person not a party, who has, or claims to have, in the subject-matter of the decree or order, a right or interest, which is directly affected thereby, * * * must be made a party to the appeal.” It is evident that if, in the present proceeding, the successful party desires to set running the time for appeal, he is compelled to serve due notice of the entry of the decree upon the special guardian, as he is within the enumerated category of necessary parties to the appeal. Then the guardian was not functus officio at the instant of the entry of the decree, but he becomes party to an appeal. It is equally true that he has the right to take and prosecute an appeal, and that his duties and office continue until the final determination of any appeal from the surrogate’s decree.

For these reasons the application is denied. All concur.