Faulkner v. Brown

CLARK, J.

Defendants move to revoke the appointment of the guardian ad litem for plaintiff in this action on the ground that said guardian is not a competent and responsible person.

[1] There is no question but that the defendants are entitled to have a guardian ad litem who is pecuniarily responsible. Code Civ. Proc. § 469; Wice v. Insurance Co., 7 Daly, 258; Strong v. Jenkins, 15 N. Y. Supp. 120.

From all the papers in the case it would appear that the guardian ad litem appointed for this plaintiff is not shown to be a responsible person, and defendants are clearly entitled to have a guardian who is responsible, and one who, if plaintiff is defeated, would be responsible for costs.

[2] But the plaintiff should have his day in court, and his rights, if any, should not be prejudiced because the guardian ad litem was not shown to be a person competent and responsible within the meaning of section 469 of the Code of Civil Procedure.

This motion is therefore granted, unless plaintiff shall, within 20 days from this date, make and file an undertaking with sufficient surety to be approved by a justice of the Supreme Court, in the penalty of $250, conditioned for the payment of any costs awarded against the plaintiff in this action, but not exceeding said sum of $250, and in case said undertaking is made, approved, and filed within 20 days from this date, the motion is denied. No costs.

Ordered accordingly.