In re the Judicial Settlement of the Account of Proceedings of Stewart , 48 N.Y.S. 999 ( 1897 )

Goodrich, P. J.:

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 funetus ojjicio by the rendition of the decree. The Code of Civil Procedure, section 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 sét 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. -Thus the guardian was not ftmePus 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 concurred.

Ex parte application for appointment of special guardian or guardian, ad litem denied.