SPARMANN v. KEIM

SPARMANN v. KEIM. N. Y. Superior Court; Special Term, March, 1879. Liability of Guardian ad litem for Costs. Where an infant began an action in his own name, and a guardian ad Utem was appointed to prosecute the suit for him, and, after the plaintiff arrived at majority, he assumed the management of the cause, and, having been defeated, judgment was entered against him for costs,—Held, that the guardian ad litem was not liable to pay such judgment. Motion by defendant, to require plaintiff’s former guardian ad litem to pay judgment for costs, and that an attachment issue against him, &c. This suit was brought on an alleged claim against defendant for money had and received by alleged false representations as to the profits, &c., of a business in which plaintiff was to become interested as partner. At the commencement of the action plaintiff was still an infant, and Charles J. Nehrbas was appointed guardian ad litem, to institute and prosecute the suit for him. The petition for such appointment showed when the plaintiff would come of ageand the complaint specially referred to said petition. Plaintiff, on arriving at majority, in 1875, assumed the management of the cause, continuing it by the same attorneys as before, with whom he remained in constant communication concerning the matter; but no change in the title of the action was made. The cause was tried in March, 1877, and re-tried in April, 1878, at both of which trials the plaintiff was present, and took general control thereof; he also testified there in his own behalf. It duly appeared in evidence, on such trials, that plaintiff became of age October 2, 1875. Plaintiff was nonsuited, and his exceptions were ordered for hearing at general term, where the same were overruled, with costs against plaintiff. Judgment was entered in favor of defendant, November 13, 1878, for the costs against plaintiff, and execution issued thereon, which the sheriff returned unsatisfied; whereupon payment of such judgment for costs was demanded by defendant, in writing, of said Charles J. Nehrbas, who had so been appointed plaintiff’s guardian ad litem. Leonard E. Curtis, for defendant, and the motion. I. Mr. Nehrbas is liable, under 2 R. S. 446, § 2, for the costs against plaintiff. II. If the action by a guardian fails, he is liable to be attached for the non-payment of the costs given against the plaintiff (Grantman v. Thrall, 31 How. Pr. 464 ; see same case on another point, 19 Abb. Pr. 308). III. The guardian ad litem is directly responsible for the costs herein up to time when plaintiff became an adult; for such guardian conducted the proceedings thus far. Wm. F. PitsTike, for guardian ad litem, opposed. I. It is only where costs are adjudged against an infant plaintiff, that his guardian is liable therefor (Code of Pro. §§ 115, 116, 316). The revised statutes, so far as they relate to this subject, have been abrogated (Linner v. Crouse, 61 Barb. 289; Grantman v. Thrall, 29 How. Pr. 344). In case plaintiff, after majority, continues and loses the suit, the costs are then adjudged against an adult plaintiff. II. Defendant’s theory of this motion would give him two persons liable for the costs (i. e., the plaintiff and such ex-guardian). This is unreasonable, and was certainly never intended by the legislature. “ On principle, there is no more reason why a defendant should have more security for his costs, when litigating with an infant plaintiff than with an adult plaintiff” (61 Barb, supra). III. The point on this motion is settled against defendant, by the authorities, to wit, on arriving at majority, the plaintiff might have repudiated the present suit, and thrown the costs upon his guardian (6 Paige, 53). Plaintiff, by going on after majority, is liable for all the costs of the suit (1 McDaniell Ch. Pr. 78, 4 ed.), viz., “in the same way, as if the suit had not been instituted until after he was of age” (Cooper Eq. Pl. 29). By plaintiff’s proceeding in the cause, after attaining majority, the guardian is discharged from liability; that adopts and affirms the acts of his guardian in bringing the suit, &c., and terminates the guardianship thenceforth (Waring v. Crane, 2 Paige, 82; Brown v. Brown, 11 Beav. 564). The guardian is liable for none of the costs herein—the guardianship having expired at plaintiff’s majority (October 2, 1875, while the old code was in force), plaintiff thereupon adopting and continuing the cause. Plaintiff is alone liable for these costs. IV. That the title of the action was not changed is unimportant; a mere suggestion of the time of cessation of plaintiff’s infancy, somewhere on the record, sufficed (People ex rel. Baker v. New York Common Pleas, 11 Wend. 166). See also Wice v. Commercial Fire Ins. Co., 2 Abb. New. Cas. 325; McDonald v. Brass Goods Manufacturing Co., Id. 434. [MAJORITY — Freedman, J.] Freedman, J. Motion denied, but without costs. There was no appeal.