Letson v. De Long , 11 Misc. 2d 655 ( 1958 )

Matthew J. Jasen, J.

This is a motion for an order vacating so much of the judgment of no cause of action in favor of the defendants, William James De Long and Hugh Kenneth De Long and against the plaintiffs, as awards the sum of $100.45 costs, in favor of the said defendants against the said plaintiffs, which judgment was entered in the office of the County Clerk of the County of Cattaraugus on the 28th day of March, 1958.

The plaintiffs contend that the judgment should be vacated inasmuch as said defendants failed to move this court for an award of costs in their favor pursuant to section 205 of the Civil Practice Act.

Section 205 reads: “No infant or guardian ad litem for an infant shall be liable for costs unless specially charged therewith by the order of the court. ’ ’

However, the defendants contend that they were entitled to costs of course under section 1475 of the Civil Practice Act for the reason that the plaintiff, Charles Letson, sought to maintain an action individually against the defendants, apart and distinct from the cause of action he sought to enforce in his capacity as guardian ad litem.

It seems clear that section 205 of the Civil Practice Act has no application to such a judgment insofar as it relates to a plaintiff suing in his individual capacity, even though he join such a cause of action with one inhering in an infant plaintiff and sought to be enforced by the self-same person in his capacity as guardian ad litem. (Giebner v. Retz, 253 App. Div. 752.)

This court finds the defendants are entitled to costs of course pursuant to section 1475 of the Civil Practice Act, as to plaintiff Charles Letson individually and that section 205 of the Civil Practice Act has no application as to him, inasmuch as he unsuccessfully sought to maintain a claimed individual cause of action against the defendants, apart and distinct from the cause of action he sought to enforce in his capacity as guardian ad litem.

Motion denied.