Giebner v. Retz

253 A.D. 752, 300 N.Y.S. 1050, 1937 N.Y. App. Div. LEXIS 5465

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 24, 1937
• Status: Published

Opinion

Order of the County Court of Rockland county modified by striking out the second ordering paragraph; by inserting in the first ordering paragraph, after the words “ cancelled and vacated,” and before the words “ and the Clerk,” the words “ as to the plaintiff in his capacity as guardian ad litem,” by inserting after the words “ of record ” the sentence, “As to the plaintiff in his individual capacity the motion to cancel is denied; ” and by striking out the words “ and it is further.” As so modified, the order is affirmed, with ten dollars costs and disbursements to appellant. The defendant was entitled to costs as of course as against the plaintiff individually inasmuch as he unsuccessfully sought to maintain a claimed individual cause of action against the defendant apart and distinct from the cause of action he sought to enforce in his capacity as guardian ad litem. Section 205 of the Civil Practice Act has no application to such a judgment in so far as it relates to a plaintiff suing in his individual capacity, even though he join such a cause of action with one inhering in an infant plaintiff and sought to be enforced by the self-same person in his capacity as guardian ad litem. Hagarty, Carswell, Davis, Johnston and Adel, JJ., concur.