McCue v. O'Hara

5 Redf. 336

• Court: New York Surrogate's Court
• Decided: October 15, 1881
• Status: Published

Opinion

The Surrogate.

It is conceded that this court has the power to make an allowance to the guardian ad litem for an infant (Redf. Prac. [2 ed.], 769). The power exists, independently of any express provision of law, or rule of court, but it is recognized by the general rules, which are applicable to all courts of record (Code, § 17; rule 50). The amount allowed is to be a reasonable compensation for the services rendered. Sometimes the taxable costs are given, when they are deemed sufficient; very often a larger amount. It has never been understood that the provisions of the Code, which recognize the right of guardians ad litem to be allowed costs, had the effect of limiting their compensation to the taxable costs. No such construction has ever been given to section 474, which speaks of the costs and expenses allowed to the guardian by the court, and it cannot justly.be claimed for section 2558, subd. 3, which excepts an infant’s guardian from the effect of the prohibition to the court to award costs to an unsuccessful contestant of a will.

The motion is denied.