Dunlay v. American Telephone & Telegraph Co. , 40 N.Y.S. 606 ( 1896 )

Per Curiam :

The guardian ad litem in this action was appointed on the 4th of April, 1895, on the application of the appellant Daniel Dunlay, the father of the infant who was then about eight years old. Upon the same day, upon the petition of the guardian ad litem,, an order was made at Special Term that the plaintiff be admitted to prosecute as a poor person the present action, and an attorney was assigned to act as attornéy for the plaintiff in accordance with the provisions of section 460 of the Code of Civil Procedure. • The action was immediately commenced by the attorney named, issue was joined, and on the 31st of May, 1895, the case was on the day calendar of the May term of the Rensselaer Circuit. At that date, upon a stipulation signed by the plaintiff’s attorney and by the defendant’s attorneys, and on motion of the plaintiff’s attorney, an order was made at the Circuit that the order of April 4, 1895, allowing the plaintiff to sue as a poor person, be vacated and set aside. This order was filed on the 18th of June,. 1895. In the meantime, and oil the fifth of June, the case was tried and a verdict was recovered in favor of the plaintiff for $600, and on the 6th of June, 1895, judgment Was entered thereon 'for that amount together with $146.09 costs. This judgment was.paid to the plaintiff’s attorney, and by him discharged of record prior to the eighteenth of June.

On the 24th of December, 1895, an order was obtained at Special Term by the plaintiff’s attorney, that the order of May 31, 1895, be filed mine pro tune as of the day it was granted.

The appellant was appointed temporary general guardian on the 19th of November, 1895, and thereupon made a motion at Special Term to vacate the order of May 31, 1895,-and to require the plaintiff’s attorney or the guardian ad- litem to pay over to the general guardian the amount of damages recovered in the action. This motion was in all things denied and the general guardian appeals.

It is apparent from the papers that the plaintiff’s attorney obtained the order of May 31, 1895, in order to enable him to receive from an expected recovery a greater compensation for himself or counsel than the law under which he was assigned to act permitted. (Code, §§ 460, 467.) The only basis of the order of May thirty-first was the stipulation of the attorneys. No affidavit of the facts was filed.- It is not shown that the father of the infant, even if he had the authority to do so, ever assented to the change of basis upon which the plaintiff’s attorney was assigned to prosecute the action. Nor does there appear in the papers before us any satisfactory reason for such change. We are of the opinion that the order of May 31, 1895, was improperly granted.

It is conceded by the counsel for the appellant that a guardian ad litem in a proper cáse may be reimbursed his necessary and proper expenses upon behalf of his- ward in event of recovery-, even though the ward sue as a poor person.

Order appealed from reversed, with ten dollars costs and disbursements, and motion to vacate the order of May 31, 1895, granted, with ten dollars costs, said costs to be paid by the attorney for the plaintiff personally, and proceedings remitted to Special Term for the determination of what allowance should be made to the guardian ad litem for expenses.

Present — Parker, P. J., Landon, Herrick, Merwin ' and Putnam, JJ.

Order appealed from reversed, with ten dollars costs and disbursements, and motion- to vacate the order . of May 31, 1895, granted, with ten dollars costs, said costs to be paid by the attorney for the plaintiff personally, and proceedings remitted to Special' Term for the determination of what allowance should be made to the guardian ad litem for expenses.