Thorn v. Beard — 39 N.Y. St. Rep. 30

Majority

p. 30

William I. Thorn, App’lt and Resp’t, v. Oliver T. Beard, App’lt and Resp’t.

(Supreme Court, General Term, Second Department;

Filed May 11, 1891.)

Headnote

Attorney and client—Compensation—Guardian ad litem.

An agreement by a father with an attorney, who appears as guardian ad litem of his minor children, for compensation for services, where their interests are not identical with those of the father, would be contrary to public policy.

p. 31

Appeal by both parties from a judgment in favor of plaintiff entered upon the verdict of a jury rendered at the Dutchess circuit.

At the trial of this action brought to recover for professional services as an attorney, it appeared that part of plaintiff’s services consisted in acting as guardian ad litem for defendant’s minor children, in the surrogate’s court, in proceedings where defendant’s interests were not identical with those of his children. The court at circuit excluded such services from the consideration of the jury. Plaintiff also claimed for services rendered in a suit for the construction of a will, as to consultation upon accounts, etc., and testified that he prepared an action for obtaining possession of certain dredges, and took steps towards preparing the claim, and before it was finally prepared the parties separated. The jury rendered a verdict in favor of plaintiff for such employment for $1,800.

Homer A. Nelson, for pl’ff; John T. Barnard (Frank B. Lown and Oliver T. Beard), of counsel, for def’t.

—The legal objection to plaintiff’s recovery from defendant for services rendered in the proceedings before the surrogate was placed by the circuit judge on the proper ground.

In those proceedings plaintiff was guardian ad litem for defendant’s children. Their interests were not identical with those of their father, and any agreement of the father to compensate the guardian would be contrary to public policy.

The evidence does not show that any service was rendered before the appointment as guardian.

As to the one item on which plaintiff was allowed to go to the jury, we find no error.

There was a question of fact upon which the verdict was decisive.

Judgment affirmed. No costs.

Dykman, J. concurs.