McDONALD v. BRASS GOODS MANUFACTURING CO.

McDONALD v. BRASS GOODS MANUFACTURING CO. N. Y. Supreme Court, Second Department; Chambers, 1877. Guardian ad Litem.—Infant.—Security for Costs. Upon application for appointment of a guardian ad litem for an infant, the papers should show the pecuniary responsibility of the person sought to be appointed. Where an irresponsible guardian ad litem of an infant had been appointed and an action for a tort brought by the guardian, upon motion of the defendant, after issue, that the guardian file security for costs,—Reid-, that security in the sum of $500 should be given, and all proceedings stayed until it was filed. Motion by plaintiff to compel filing security for costs. Mary McDonald, by Mary Madigan, her guardian, sued the Brass Goods Manufacturing Company, for $10,000 damages for a personal injury, alleged to have been caused by the carelessness of the plaintiff, while she was in its employ. The affidavits upon which the guardian ad litem was appointed did not aver her pecuniary responsibility. After the action was at issue, the defendant, upon the pleadings, and an affidavit showing the pecuniary irresponsibility of the guardian ad litem,, and certain facts of the defense, moved that she file security for costs. Edward B. Kennedy (Heald & Kennedy, attorneys), for the motion, urged: I. That the court had power to require security independent of the authority conferred by statute (Fulton v. Rosevelt, 1 Paige, 178 ; Ten Broeck v. Reynolds, 13 How. Pr. 462; Jackson v. Miller, 3 Cow. 57; Jackson v. Edwards, 1 Id. 138; Swift v. Collins, 1 Den. 659; Dyer v. Dunivan, 3 How. Pr. 135; People v. Oneida Com. Pleas, 18 Wend. 652 ; Grantman v. Theall, 19 Abb. Pr. 308 ; Linner v. Crouse, 61 Barb. 289). II. That where the guardian ad litem was insolvent, the security required by section 316 of the Code, which was intended as a substitute for 3 Rev. Stat. 910-911, was wholly lost, and the court, in the exercise of its discretion, should exert its inherent authority and cause such security to be given, thereby placing the defendant in the same position as he would have been had the guardian ad litem been responsible (Linner v. Crouse, supra). T. F. Loughlin, opposed. [MAJORITY — Barnard, J.,] Barnard, J., Held, that the guardian ad litem should not have been appointed unless the papers upon which application was made showed her pecuniary responsibility ; and ordered her to file security for costs in the sum of $500, with two sufficient sureties, to be approved by a justice of the court or the county judge, on or before the 3rd day of September, 1877, and that until such security was so approved and filed all proceedings on the part of the plaintiff should be stayed.