Honadle v. Stafford

Crosby, J. The infant, by bis guardian ad litem, brought an action against defendant which was settled and compromised at-$900 pursuant to an order of the Special Term. The order provided that out of the $900 the guardian ad litem “ is authorized and empowered to retain as and for the services of his attorney * * * the sum of $300 and that the balance of $600 be held by him as general guardian of" the above named infant plaintiff, upon letters of guardianship issued to him out of the Surrogate’s Court,”-etc.’ The guardian ad litem procured his appointment as general guardian by the Surrogate’s Court and qualified as such guardian, then executed a release of the infant’s cause of action and placed it, together" with bis letters of general guardianship, into the hands of his attorney who procured the money from defendant and executed a stipulation of discontinuance and delivered the general release and stipulation to defendant’s attorney. The attorney for the ’guardián has never paid the $600 to" the guardian, and he has been disbarred. . This is an appeal from an. order of the Special Term denying a motion by the guardian to compel defendant either to pay the $600 or else suffer the cancellation of the release and of the stipulation and. order of discontinuance. The practice followed by the Special Term, of ordering the infant’s money paid to a general guardian, when appointed, is authorized by the Rules of Civil Practice (Rule 41, subd. 4), and is a good practice, for, as a practical matter, a general guardian is subjected to a more constant and vigilant supervision than is usually given to any other kind of guardian. (Surr. Ct. Act, § 190.) The question involved in this appeal is whether or not the defendant is protected in his payment to the attorney whom the guardian selected and to whom he intrusted the indicia of authority to make the settlement and receive the money,. that is, the general release and the letters of guardianship. In my opinion he was. To be sure, infants are the wards and the special care of the courts. But even infants have to have attorneys who are officers of the court and fortunately trustworthy as a general rule. The general guardian has given a bond and is answerable to the Surro [397] gate’s Court for the faithful performance of his duty toward the infant’s property. Our attention has not been called to any authority directly in point in this State. Dicta can be found where it is said that “ A receipt of money by the attorney is the act of the guardian,” etc. (Heiter v. Joline, 135 App. Div. 13.) That was a case where payment to the guardian’s attorney was held not to protect the defendant because the order authorizing the settlement had been forged, the guardian had given no bond, and it was held that defendant was bound to see that the guardian was authorized to receive the infant’s money before paying it to the infant’s attorney. The case of Wileman v. Metropolitan St. R. Co. (80 App. Div. 53) is much the same kind of a case. The guardian had given no bond, and the court said that “ the guardian ad litem being prohibited from receiving the amount of the judgment, her attorney was also prohibited from receiving it.” From these authorities I think the fair implication is that, had the guardian been authorized to receive the money, he could have authorized his attorney to act for him in that regard. (See, also, Greenburg v. N. Y. C. & H. R. R. R. Co., 210 N. Y. 505.) There are authorities in other States which intimate that an attorney for a general guardian may be dealt with safely, in reliance on his authority to act. Collins v. Gillespy (148 Ala. 558) is a case where a recovery for an infant was had in a suit brought for the infant by a “ next friend.” The court held that the attorney for the “ next friend ’’ could not enforce collection of the judgment, but that the money must be paid to a general guardian. The court said: “ If the next friend has not the authority to receive payment or enter satisfaction, it follows logically that an attorney who derives the only authority he has from the next friend is not clothed with such authority.” (See, also, Paskewie v. East St. L. & S. R. Co., 281 Ill. 385, and Pace v. Reid, 158 Miss. 145, the latter a case in which the rights of an administrator, not a guardian, were involved.) The case of State ex rel. Lane v. Ballinger (41 Wash. 23) is a case directly in point, and holds that an attorney for a special guardian has authority to receive money to satisfy a judgment recovered for an infant, and to give satisfaction of the judgment. We think the reasoning in that case is sound. The opinion states: “ For reasons that are manifestly commendable, courts have always jealously guarded the rights of infants. At the same time, it frequently becomes necessary for infants to prosecute lawsuits for the protection of their rights in courts of justice, as it was in this case; and as a rule the same procedure that is applicable to the trial [398] of lawsuits in other cases must of necessity be applied to the trial of lawsuits where minors are parties, either plaintiff or defendant.” The order appealed from should be affirmed, with ten dollars costs and disbursements. All concur, except Taylor and Thompson, JJ., who dissent and vote for reversal in an opinion by Taylor, J.