Rhodes v. United States

15 F.R.D. 500

• Court: District Court, S.D. New York
• Decided: March 25, 1954
• Status: Published

Opinion

MURPHY, District Judge.

Absent a specific provision in the Federal Rules of Civil Procedure, 28 U.S.C.A., the appropriate district court rule, in the case of actions on behalf of infants, merely directs that “the balance of the proceeds of the recovery * * * be distributed as [the court] deems may best protect the interest of the infant * * General Rules of United States District Courts for the Southern and Eastern Districts of New York, Rule 20, par. 3. The direction to “conform, as nearly as may be, to the practice in the New York state courts”, appearing in the same rule, id., par. 1; see also id., note, ought to be followed in the absence of circumstances indicating their lack of wisdom. A bond cannot be dispensed with in the exercise of discretion for a recovery of the amount in the instant case. New York Civil Practice Act, § 980-a. Recommendations made to the legislature which would make such bond unnecessary have not been adopted. See Eighteenth New York Judicial Council Report, 77-79 (1952); Nineteenth New York Judicial Council Report, 83-84 (1953). In passing, it should be noted that procedure without bond is possible by payment of the funds into court which are then turned over to the county treasurer, or the city treasurer in cases within the city of New York. Cf. New York Civil Practice Act, art. 14, § 133-137. The expense involved, cf. id., § 1561, and other obvious considerations, might well make such a procedure not feasible.

Accordingly, I again refrain from signing this order.