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Steinberg v. Manhattan Railway Co.

46 N.Y. Super. Ct. 216 14 Jones & S. 216 Court N.Y. Super. Ct. Decision date 1880-06-18 English

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p. 216
ISAAC STEINBERG, an infant, &c., v. THE MANHATTAN RAILWAY Co.

Headnote

Guardian ad litem.— Security for costs.
A guardian ad litem is responsible for costs under the Code of Civil Procedure, but he is not required to file security therefor.
Before Curtis, Ch. J., and Freedman, J.
Decided June 18, 1880.
Appeal from an order denying a motion to compel the guardian ad litem to the infant plaintiff, duly appointed under the Code of Civil Procedure, to file security for costs.
It was not claimed that the guardian is irresponsible or a non-résident.
R. E. Deyo, for appellant, urged:
In the case of Blake v. Doolan, decided in the supreme court by Judge Daniels, in December last, the following opinion was delivered: “The circumstances that the guardian for an infant plaintiff is required to be a competent and responsible person, who shall be responsible for costs (Code, § 469), is not sufficient to deprive the defendant of the right to security. The same qualifications were required for the person selected as the next friend of an infant plaintiff before the enactment of the Code, and the person appointed was in like manner rendered liable for costs (2 R. S. Edm. ed. 465, § 2). The only change made by the Code in the section is in the name given to the' person appointed, and that was not sufficient to supersede the provision entitling the defendant to require security to be refiled. As both requirements existed together under the Revised Statutes, they must be both equally consistent with each other under the Code. The statute entitles the defend-, ant to the security (5 R. S. 5 ed. 910, § 1). And
p. 217
neither the section of the Code referred to, nor either of those following, i. e., providing for a bond to the infant, is, in the least degree, in conflict with the continued existence and authority of that provision. The order must require a bond as security for the defendants’ costs. There are decisions to the contrary, viz.: Leinner v. Crouse, 61 Barb. 289 ; Grantman v. Thrall, 29 How. Pr. 344 . But it is respectfully submitted that the opinion of Judge Daniels, and the dissenting opinion in Grrantman r. Thrall, are the only ones which reconcile the Code with the Revised Statutes, and that such reconciliation must be made, if possible.
Frank Etheridge, for respondent, urged :
I. No security can be required. The provisions of the Revised Statutes as to security being filed by the “ next friend” of an infant plaintiff, do not apply to a guardian ad litem appointed under the Code (Linner v. Crouse, 61 Barb. 289 ; Grantman v. Theall, 19 Abb. Pr. 308 ).
II. The Code of Civil Procedure makes the guardian ad litem liable for costs (§ 469).
III. The order was discretionary, and is not appealable (Bolles v. Duff, 17 Abb. Pr. 448 ; Fearn v. Grelpcke, 13 Abb. Pr. 473 ).

The defendant appeals from an order, denying Ms application that the guardian ad litem of the plaintiff file security for costs. The Code of Civil Procedure makes the guardian ad litem responsible for costs (§ 469), but it does not require him to file security therefor. If the legislature had intended that an infant plaintiff should be restrained from prosecuting an action until his guardian ad litem filed security for costs, which, in the present application it is claimed should be for $750, it is but reasonable to suppose they would have made some enactment to that effect.

p. 218
The order appealed from should be affirmed, with hosts.

• Freedman, J., concurred.

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