Lottie Herman, Respondent, v. New York City Railway Company, Appellant

Lottie Herman, Respondent, v. New York City Railway Company, Appellant. Second Department, November 22, 1907. Attorney and client — action by infant discontinued. An infant plaintiff for whom no guardian ad litem has been appointed, who wishes to discontinue, should not be compelled to litigate for the benefit of her attorney. Appeal by the defendant, the Hew York City Railway Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the-26th day of January, 1907, denying its motion for the discontinuance of the above-entitled action. Bayard II. Ames [ Walter Henry Wood and James L. Quackenbush with him on the brief], for the appellant. Joseph Gans, for the respondent. [MAJORITY — Miller, J. :] Miller, J. : This case is like the case of Kelly v. New York City Railway Co. (122 App. Div. 467), decided herewith, except that the plaintiff is an infant and that the clerk of the attorney of record for the plaintiff procured her to sign a writing authorizing said attorney to bring suit. She says that site did not understand the contents of the paper signed by her, and that she wishes the action discontinued. Said clerk states that he was informed by the plaintiff that she was over twenty-one years of age. Her reason for deceiving her attorney, if she understood that she was employing one, is not apparent. But irrespective of that, we think the court should not compel an infant, for whom no guardian ad litem has been appointed, to prosecute an action which she wishes to discontinue. The motion should be granted. Woodwabd, Jenks, Hookeb and Rich, JJ:, concurred. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs payable by the attorney for the respondent.