Hill v. Lee , 38 N.Y.S. 641 ( 1896 )

Barrett, J. :

• The complaint avers that it was adjudged in the foreclosure action tliat the mortgaged premises be sold, and that the costs of the guardian -ad litem be paid out of the proceeds of sale. There is no averment that it-was adjudged that these, costs should be paid by the mortgagee plaintiff. It follows' that the present plaintiff (the guar-' di'an ad Utem in the foreclosure action) cannot recover upon the judgment, nor can he recover upon an implied promise Upon the part of the mortgagee plaintiff to pay his costs. Ho express promise is averred. The averment is, that the guardian’s services were rendered for the benefit of the mortgagee plaintiff and upon the latter’s implied request. But this is a mere conclusion of law, which is not borne out by the facts stated, and which is not admitted by the. demurrer. The services were not in fact rendered for the benefit of the mortgagee plaintiff, but for the protection of the infant. Any act of one’s adversary whereby the litigation is expedited may, in one sense, be said to be beneficial; but the interposition of an answer, however promptly, is surely not, in a legal sense, an act done for the benefit of the plaintiff. If the mortgagee plaintiff had been unsuccessful in the foreclosure action the court could have awarded costs against him in favor of the guardian ad litem, the same as in favor of any other successful defendant; but he cannot well be charged with a defendant’s costs where he was entitled to and has secured his decree as against that defendant. The court had authority to award, as it did, costs to be paid out of the proceeds of the sale. If these proceeds were insufficient, and the infant had an independent estate, the court could still protect the guardian in a. proper proceeding by directing payment out of the infant’s estate. But there the power of the court ends, and there the guardian’s rights end. He cannot look to the successful plaintiff personally. The latter has no contract relation with him, express or implied.. As well might the committee of a lunatic or the representative of a" deceased judgment creditor claim such contract relation, merely because the mortgagee plaintiff, to secure a valid decree, must bring him in.

The averment that the attorney for the mortgagee plaintiff requested the guardian ad litem to serve his answer of is no moment: That was simply a request that the guardian do his duty by the infant, and do it properly. It was certainly not a request to perform a service for the plaintiff in the foreclosure action. This suggestion of the appellant exposes the fallacy of his contention. For how can a plaintiff contract with propriety for a service to himself, the foundation of which is a service to his adversary ? And if he cannot make an express contract, how can one be implied? The guardian is appointed to protect the infant by defeating the plaintiff if there be just ground of defense. He must look into the case to seewhether there be such ground of defense. Of what value would' his services be to the infant were he the hireling of the plaintiff ? Even where he finds no defense, and merely submits the infant’s interests to the courts, he still must see to it that the plaintiff secures no greater judgment than he is legally entitled to. A person in such a position cannot reasonably be likened to the referees or others who are called on by the court to perform independent functions of aii official character in the cause or in the execution of the judgment. ' The plaintiff is undoubtedly liable for the fees and charges which are incident to the procedure. But these necessary expenses of the litigation are entirely different from the statutory costs awarded to'parties aS between each other, and from the charges of' attorneys for their services to their client's.1 The services of the guardian ad Mtem'are not analogous to the necessary disbursements incurred in the cause. They are independent services rendered to the infant for his protection, and not in any just sense rendered to the plaintiff. ■■'

The order and interlocutory judgment should not, however, have-provided. for; a dismissal of the complaint in terms “upon the merits:”' The effect bf the judgment should not have been thus, adjudicated. / The judgment should have been in the usual form. It should be modified by striking out the words “ upon the merits ” wherever these words appear therein, and, as thus modified, affirmed, without costs of 'this appeal, and with leave to the plaintiff to amend his complaint, if so advised, within twenty days, upon payment of the costs awarded by the Special Term.

Yah Brunt, P. J., Bumsey, Williams and Patterson, JJ., concurred. ■

judgment modified as directed' in opinion, and, as modified, affirmed, without costs of appeal, and With leave to plaintiff to amend complaint within twenty days upon payment of costs in the court below.