McConnell v. Adams — 5 N.Y. Super. Ct. 728

Majority

p. 728

McConnell v. Adams.

Headnote

An infant defendant over fourteen, served with a summons, may apply after, as well as before the expiration of twenty days, for the appointment of a guardian ad litem, if none have been appointed for him.

April 5, 1851.

In this case, the defendant, who was nineteen years of age, was served with a summons in December last. On the 22nd of February, the plaintiff prepared papers on which to apply for the appointment of a guardian ad litem, but before those were acted upon, the defendant on the 2oth of February presented a petition, and procured such guardian to be appointed. The guardian ad litem demanded a copy of the complaint, which was not furnished to him, and on the 21st of March, he gave notice of a motion to dismiss the complaint. The plaintiff insisted

p. 729

that the defendant could not apply for the appointment of a guardian after twenty days.

Q. Mg Adam, for the motion.

J. 3. Elite, for the plaintiff.

with the concurrence of two of his associates, held that the appointment was properly made. That the provision in section 116 of the code, was .intended for the benefit and protection of the infant, to secure him the opportunity of having a guardian of his own selection, by giving him twenty days after the service of the summons, in which no other person could apply. After that time, the plaintiff, or any relative or friend of the infant might make the application, but the infant was still at liberty to apply himself, until forestalled by such application.