Blumenthal v. Alexander

Smith, J.: This action is brought by a guardian ad litem, a resident of this State, in behalf of an infant plaintiff, a non-resident of the State. By section 3268 of the Code of Civil Procedure it is provided that where the plaintiff resides without the State security for costs may be required by the defendant. By section 469 of the Code of Civil Procedure the guardian ad litem is liable for the costs of the action chargeable against the plaintiff, and is required to be financially responsible therefor, and in Tropeano v. Grimaldi (173 App. Div. 534), it has been held that if the guardian ad litem be not financially responsible, his appointment may be vacated upon defendant’s motion. With a resident guardian ad litem of sufficient financial ability to answer for any costs charged against the plaintiff the defendant needs no further security, and has the full protection which it is the design of the statute to give to him. For the purposes of this statute, therefore, the guardian ad litem may be deemed the plaintiff in this action, and as he is a resident of the State, the statute invoked does not apply. This was so ruled by Mr. Justice Pound at an Equity Term in Erie county, reported in Crossett v. Bean (69 Misc. Rep. 69), which ruling was cited with approval in the Tropeano case, above referred to. The order should, therefore, be reversed, with ten dollars costs and disbursements, and the motion granted, without costs. Clarke, P. J., Laughlin, Dowling and Davis, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted, without costs.