Segelken ex rel. Koch v. Meyer , 21 N.Y. Sup. Ct. 593 ( 1878 )

Gilbert, J.:

No doubt the general guardian might have brought this action in his .own name. Such right of action rests upon his duty to take the control and management of the infant’s personal estate. It is also conferred upon all trustees of express trusts by statute. But it does not follow that the right of action of the general guardian is exclusive of that of the infant. On the contrary, the legal title to the moneys in controversy is vested in the infant, and his general guardian is merely his bailiff or trustee. As the moneys, belong to the infant, I see no objection to the appointment of a guardian ad litem to sue for the recovery of them in a proper «ase. (Thomas v. Bennett, 56 Barb., 197, and cases cited; 2 Kent Com., 240.) The only question heretofore has been, whether the general guardian could maintaiu an action to recover debts-due the infant; and although that question has been set at rest . the converse one respecting the right of the infant by a guardian-ad litem to maintain such an action, has not, to my knowledge, been authoritatively denied. The infant having a right to sue on the ground of his general property, it must be done by a guardian ad litem, (Code of Civil Procedure, §§ 468, 469), who may in some cases be appointed on the application of the general or testamentary guardian. Section 47 6 also recognizes an appointment of the general guardian as guardian ad litem. (See also Schoul. Dom. Rel., 592, et seq., and authorities cited.) As the moneys must, when recovered, be paid at once to the general guardian, there is not ordinarily any occasion for such a proceeding. But infants are wards of the court, and the court has power, whenever it deems it necessary, to appoint a guardian to prosecute or defend an action for them. The papers do not show the reasons for the appointment of the .guardian ad litem in this case. It is not, however, material to inquire what the reasons were, because he is also the general guardian of the infant. The defendant will be as fully protected by a payment, as if the action had been brought by the guardian ad litem in his capacity of general guardian.

; The allegation of an actual conversion of the moneys renders the averment of a demand superfluous. In other respects the facts stated are sufficient to warrant the order of arrest.

: The order appealed from must be reversed, with ten dollars ■costs and disbursements.

Dykman, J., concurred. Present — Barnard, P.J., Gilbert and Dykman. JJ.

Order vacating order of arrest reversed, with ten dollars costs •and disbursements.

Part of order imposing stipulation not to sue for false imprisonment reversed, without costs.