Towner v. Towner

7 How. Pr. 387

• Court: New York Supreme Court
• Decided: January 15, 1853
• Status: Published

Opinion

Hand, Justice.

I do not understand the practice as contended for by the defendant’s counsel. If a feme covert plaintiff is not an infant, or lunatic, &c., no order for leave to sue by next friend, or for the appointment of next friend, is necessary (1 Hoff. Pr. 66). It seems he should be a man of substance; and if he is insolvent, the proceedings may be stayed a reasonable time till security is filed, and the complaint may be dismissed if that is not done (Lawrence vs. Lawrence, 3 Paige, 267; Fulton vs. Rosevelt, 1 id. 178; Robertson vs. Robertson, 3 id. 387; Remnington vs. Alvin, 1 S. & S. 264; Barlee vs. Barlee, id. 150: Anon. 1 Atk. 570; 1 Dan. Pr. 144; 3 Wend. 424; 3 Bac. Ab. 360; Andrew vs. Craddock, 1 Eq. Ca. .Ab. 72; S. C. Prec. in Chan. 376). In case of an infant sole plaintiff, the Revised Statutes required that the next friend should be appointed by the proper officer (2 R. S. 445-6). The Code requires a guardian for an infant party, to be appointed by the court or a judge (Code, § 115-6). But if of full age, as in this case, I find no precedent of an order appointing a next friend. No one can sue as her next friend without her consent (Stor. Eq. Pl. § 61), which is usually evinced by a written consent signed by her (1 Hoff. Pr. 66; App. No. 11; 2 Barb. Ch. Pr, 263, 687). In Remington vs. Alvin, supra, it appeared the next friend was the paramour of the plaintiff and insolvent; a person not likely to be appointed by the court. And in Bligh vs. Tredgett (8 Eng. L. & E. R. 79), one whom the solicitor had substituted in the place of a deceased pro. ami, was made liable for all the costs, though the substitution was without his knowledge, he having never heard of the suit until a motion to dismiss the bill (and see Mitford, 28; Randolph vs. Dickerson, 5 Paige, 577; Andrews vs. Craddock, supra ; Greenaway vs. Rotherham, 9 Sim. 88; 1 Dan. Pr. 14; Smith vs. Myers, 3 Madd. R. 474; 1 Moult. Ch. Pr. 107; 2 id. 490; Anon. 1 Ves. Jr. 409, and notes'). This case might have been decided differently here, as to the liability for costs; but I do not understand any action of the court is necessary to appoint a pro. ami in these cases. Nor do I understand that the Code has changed the practice as to the manner of naming or appointing a next friend.