Clay ex rel. Stone v. Baker

48 N.Y. Sup. Ct. 58, 2 N.Y. St. Rep. 275

Opinion

Bradley, J\:

The contention of the defendants is that as the affidavit was not made by the party plaintiff it was ineffectual as a verification, because it did not set forth the grounds of his belief and the reason why it was not made by such party. The statute provides that the verification must be made by the affidavit of the party, except that under certain prescribed circumstances it may be made by the agent or attorney (Code Civil Pro., § 525); and that when made by a person other than the party he must set forth in the aifidavit the grounds of his belief as to all matters not stated upon his knowledge and the reason why it is not made by the party. (Id., § 526.) The guardian is not a party plaintiff to the action. (Sinclair v. Sinclair, 13 Mee. & Welsb., 640.) But he prosecutes the action, and the complaint is his pleading in behalf of the infant plaintiff. And the latter cannot be required to verify the pleading; nor is it any evidence against her, nor does it conclude the infant party. (2 Kent’s Com., 245 ; 3 Greenl. Ev., § 278; Bulkley v. Van Wyck, 5 Paige, 536; Stephenson v. Stephenson, 6 id., 353.)

The statute provides for verification by a party, and by an agent or attorney only. The guardian ad litem does not come within the meaning of the term agent or attorney, as that term is usually understood or applied; and if he cannot be deemed a party the verification of a pleading by him as such is not within the statute or provided for by it. But such guardian was appointed to prosecute the action in behalf of the infant; the complaint is his pleading and not that of the infant, and in that sense he is the party pleading and, therefore, the party, within the contemplation of the statute, who may, as such, verify a pleading.

In Anable v. Anable (24 How., 92) it was remarked that the guardian verifies as a party and not as an attorney or agent of the party, and although the question was not necessarily in that case the rule there stated is in accord with the view which before the •Code prevailed, as to his relation to the pleadings and proceedings in the prosecution and defense of suits in behalf of infant parties. And in those in chancery, where oath to bill or answer was made or required, it was that of the guardian only, because he was deemed the party or person upon the record prosecuting or defending, and the bill or answer his. (1 Barb. Ch. Pr., 148, 149 ; Rogers v. Cruger, 7 Johns., 587.) There is nothing in the statute which can fairly be treated as a purpose to change such relation or to so qualify the term party as to confine it to the party to the action, as distinguished from the party pleading, for the purposes of verification. The guardian ad, litem for that purpose is a party upon the record, and by him the infant appears and' prosecutes, with the right of the latter to inquire, on arriving at full age, during its pendency, whether the guardian has properly prosecuted the action, and to abandon it and charge him with costs if he has not. (Waring v. Crane, 2 Paige, 79.) This relation to the record is not questioned in People ex rel. Baker v. New York Common Pleas (11 Wend., 164).

The affidavit of verification seems to have been properly made by the guardian as such in the form as by a party.

The order should be affirmed.

Smith, P. J., Barker and Haight, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.