In the Matter of the Appointment of a Temporary Guardian of the Person of Ludlow W. Valentine, an Infant, etc.

In the Matter of the Appointment of a Temporary Guardian of the Person of Ludlow W. Valentine, an Infant, etc. (Submitted June 2, 1885 ; decided October 6, 1885.) This was an appeal by Catharine A. Valentine, the mother of the infant above named, from an order of General Term affirming a decree of the surrogate of the county of Kings, appointing George W. Bergen guardian of the person of said infant. The surrogate’s decree also imposed costs upon the appellant individually. As to the facts, the court say: “ The decisions of the surrogate upon the questions of fact involved in this case, although reviewable in the Supreme Court, are not reviewable in this court, provided there is any evidence to support his findings. (Code of Civ. Pro., § 1337; In re Will of Ross, 87 N. Y. 514.) * * * We have carefully examined the testimony and are unable to say that it is so destitute of evidence in support of the findings of the surrogate as to justify us in reversing them.” As to the costs, the court say: “¥e think that the award of costs against the appellant personally was erroneous. The proceeding was ostensibly for the benefit of the infant. The petition alleged that he was without a legal guardian, and prayed that some person other than his mother be "appointed guardian of his person. The mother was cited because she was prima facie entitled to the custody of the infant, but she was not a party to the proceeding in such a sense as to subject her to liability for costs.” George Hill and William, Fullerton for appellant. Horace Secor, Jr., for respondent. [MAJORITY — Rapallo, J.,] Rapallo, J., reads for modification of order of General Term so as to reverse that part of the surrogate’s decree which awards costs against appellant, and as modified affirmed. All concur. Ordered accordingly.