De Benedetto v. Alpha Portland Cement Co.

E.D. New York

De Benedetto v. Alpha Portland Cement Co.

199 F. 540, 1912 U.S. Dist. LEXIS 1221

DecidedOctober 2, 1912

StatusPublished

This text of 199 F. 540 (De Benedetto v. Alpha Portland Cement Co.) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

De Benedetto v. Alpha Portland Cement Co., 199 F. 540, 1912 U.S. Dist. LEXIS 1221 (E.D.N.Y. 1912).

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Opinion

CHATEIELD, District Judge.

The plaintiff, an infant of 20 years, was injured in the state of Pennsylvania. He came to New York and took up his residence, bringing an action, through a guardian ad litem, in the Supreme Court of the state of New York, in Richmond county, which was removed into this court. The guardian ad litem was an acquaintance and friend of the infant, and the infant seems to have been supported for a time through a benevolent' society, which also caused the appointment, of the guardian ad litem and the beginning of the litigation. Subsequently thereto the infant plaintiff was taken charge of by certain relatives, wrho retained a different attorney, and secured the appointment of a different guardian ad litem, under whose direction an action was brought in the Supreme Court of New York, in New York county. The responsibility of the infant for his conversations with the different parties, and the amount of understanding which he had as to whether an action was being brought in his behalf, cannot be determined upon this application.

The defendant in the action in New York county made a motion to vacate the appointment of the guardian ad litem, upon the ground that the infant plaintiff had already proceeded to bring an action which was pending in this court. Whether or not this would have been a valid defense, or whether, if the appointment of the guardian ad litem in that action had been vacated, it would have availed more than to require a renewal of the application, under proper recitals, provided the present action were out of the way, need not he considered, for the Supreme Court of New York comity has withheld action on that application until some proceeding can be taken in this court, so that the infant may prosecute the action which he really desires to have carried on, and to dispose of the other, so that but one shall be pending.

The present motion, therefore, was made by the attorney for the [542]*542guardian ad litem in the action in New York county. This motion was to vacate the appointment of a guardian ad litem in this court, and to discontinue the action. It was based upon allegations that the original request for the appointment of a guardian ad litem and the institution of the action were unauthorized. But these charges do not seem to be substantiated, and it must be held that the infant had sufficient knowledge of the facts, or gave such general authorizations, that' the appointment of the guardian at the beginning of the action should not be vacated, except upon affording proper protection to the attorney who did the work, for the services which he has rendered up to the present time. In other words, if the infant wishes to continue with his subsequent action, he may discontinue the present action in this court, upon proper terms.

The defendant has appeared, and has stated in open court that it is willing to -proceed in either action, provided it is not called upon to defend two actions at the same time. It does not oppose the motion to discontinue this action, if the plaintiff puts himself in such position that the defendant’s rights will be protected. Under these circumstances, the motion must be denied in the form in which it was presented. The court cannot find that the proceedings in the action in this court were entirely fraudulent, nor so unauthorized as to be null and void. But, on the other hand, the plaintiff now expresses a wish to proceed with his present attorney and through his present guardian ad litem.

Some doubt is thrown upon the ability of the guardian ad litem in the action in this court to satisfactorily represent the plaintiff, and this is an additional reason why the appointment should be vacated. But the plaintiff will have to apply to this court for the substitution of the guardian ad litem in the New York action, or of some other person as a party to act on his behalf, and then that party will have to move for the substitution of attorneys or the discontinuance of this action upon terms, and an order may then be made protecting the rights of the defendant and of the attorneys who have started the present, action.

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CHATEIELD, District Judge.

The plaintiff, an infant of 20 years, was injured in the state of Pennsylvania. He came to New York and took up his residence, bringing an action, through a guardian ad litem, in the Supreme Court of the state of New York, in Richmond county, which was removed into this court. The guardian ad litem was an acquaintance and friend of the infant, and the infant seems to have been supported for a time through a benevolent' society, which also caused the appointment, of the guardian ad litem and the beginning of the litigation. Subsequently thereto the infant plaintiff was taken charge of by certain relatives, wrho retained a different attorney, and secured the appointment of a different guardian ad litem, under whose direction an action was brought in the Supreme Court of New York, in New York county. The responsibility of the infant for his conversations with the different parties, and the amount of understanding which he had as to whether an action was being brought in his behalf, cannot be determined upon this application.

The defendant in the action in New York county made a motion to vacate the appointment of the guardian ad litem, upon the ground that the infant plaintiff had already proceeded to bring an action which was pending in this court. Whether or not this would have been a valid defense, or whether, if the appointment of the guardian ad litem in that action had been vacated, it would have availed more than to require a renewal of the application, under proper recitals, provided the present action were out of the way, need not he considered, for the Supreme Court of New York comity has withheld action on that application until some proceeding can be taken in this court, so that the infant may prosecute the action which he really desires to have carried on, and to dispose of the other, so that but one shall be pending.

The present motion, therefore, was made by the attorney for the [542]*542guardian ad litem in the action in New York county. This motion was to vacate the appointment of a guardian ad litem in this court, and to discontinue the action. It was based upon allegations that the original request for the appointment of a guardian ad litem and the institution of the action were unauthorized. But these charges do not seem to be substantiated, and it must be held that the infant had sufficient knowledge of the facts, or gave such general authorizations, that' the appointment of the guardian at the beginning of the action should not be vacated, except upon affording proper protection to the attorney who did the work, for the services which he has rendered up to the present time. In other words, if the infant wishes to continue with his subsequent action, he may discontinue the present action in this court, upon proper terms.

The defendant has appeared, and has stated in open court that it is willing to -proceed in either action, provided it is not called upon to defend two actions at the same time. It does not oppose the motion to discontinue this action, if the plaintiff puts himself in such position that the defendant’s rights will be protected. Under these circumstances, the motion must be denied in the form in which it was presented. The court cannot find that the proceedings in the action in this court were entirely fraudulent, nor so unauthorized as to be null and void. But, on the other hand, the plaintiff now expresses a wish to proceed with his present attorney and through his present guardian ad litem.

Some doubt is thrown upon the ability of the guardian ad litem in the action in this court to satisfactorily represent the plaintiff, and this is an additional reason why the appointment should be vacated. But the plaintiff will have to apply to this court for the substitution of the guardian ad litem in the New York action, or of some other person as a party to act on his behalf, and then that party will have to move for the substitution of attorneys or the discontinuance of this action upon terms, and an order may then be made protecting the rights of the defendant and of the attorneys who have started the present, action.

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Bluebook (online)

199 F. 540, 1912 U.S. Dist. LEXIS 1221, Counsel Stack Legal Research, https://law.counselstack.com/opinion/de-benedetto-v-alpha-portland-cement-co-nyed-1912.