Crossett v. Dean

69 Misc. 69, 124 N.Y.S. 916

• Court: New York Supreme Court
• Decided: September 15, 1910
• Status: Published

Opinion

Pound, J.

The plaintiffs are non-resident infants, suing by resident guardian ad litem, duly appointed. When the plaintiff is “ a person residing without the State ” the right to security is absolute. Code Civ. Pro., § 3268, subd. 1. But the guardian ad litem is personally responsible for the costs (Code Civ. Pro., §§ 469, 3249), and he must be regarded as the substantial plaintiff for the purposes of this section. The infant plaintiffs come within the letter but not within the reason of the law, and the right to security is not absolute.

But this is an action against the trustee of an express trust, and it is urged that the discretion of the court should he exercised in favor of this application under section 3271, for the reason that the guardian ad litem is not responsible.

The guardian of an infant plaintiff must be “ a competent and responsible person.” Code Civ. Pro., § 469. Presumptively be is such person, so long as the order appointing him remains in force, and he may be removed if he fails to meet these requirements. The only object in requiring security is to protect the trustee from needless or vexatious suits by irresponsible parties, and security should not be required when the action is brought in good faith by infants by a guardian ad litem,, duly appointed.

Furthermore, it appears that the defendant is trustee for the plaintiffs and has funds belonging to them in his hands. The suit is in equity and costs are in the discretion of the court. The contingency of loss on his part seems remote.

Motion denied.