Haug v. Hewitt

Benedict, J. In this case, an action brought on behalf of an infant, I am asked to approve a settlement agreed upon between the plaintiff’s special guardian and the defendant, and to direct that the amount thereof, less attorney’s fees, be paid to the infant’s general guardian, who, as I understand from counsel’s statement, has' been appointed by the Surrogate’s Court, without bond, pursuant to the provisions of section 2650 of the Code of Civil Procedure, as enacted in the Surrogate’s Practice Act of 1914 (Laws of 1914, chap. 520), which took effect on September first. In [68] my opinion it is not for the best interests of the infant that his property should be turned over to a guardian who has not given a bond, despite the precautionary provisions of the section just referred to. The question, therefore, arises whether this court is obliged to direct that the sum in question should be paid to the guardian. I think that no such obligation rests upon this court. The “ general jurisdiction in law and equity ” which the Supreme Court possesses under the Constitution (art. 6, § 1; Code Civ. Pro. § 217) includes the powers formerly exercised by the Court of Chancery with respect to the persons and property of infants. Thus in Matter of Hubbard, 82 N. Y. 90, Judge Andrews said: “ The jurisdiction of the Court of Chancery over the persons and property of infants, and to appoint guardians of the persons and estates, whatever may have been its origin, is universally conceded, and it is one of the most useful and important functions which it is called upon to exercise. Story Eq. Juris. §§ 1327 et seq. The power formerly possessed in this Staté by the Chancellor is now vested in the Supreme Court, which exercises, through its judges, the same jurisdiction over infants in awarding the custody and care of their persons and property as was possessed and exercised by that officer. Wilcox v. Wilcox, 14 N. Y. 575.” See also 3 Pom. Eq. Juris. (3d ed.) §§ 1303 et seq.; Veeder v. Horstmann, 85 App. Div. 154, 161. The statutes conferring upon Surrogates’ Courts power to appoint and control guardians of infants have in no way impaired the powers of the Supreme Court in this respect. Indeed, it has been held that the Supreme Court may in -the interest of the infant award the custody of the person of the infant to some person other than the guardian appointed by the Surrogate’s Court. Wilcox v. Wilcox, supra. See also People ex rel. Cornelius v. Callan, 69 Misc. [69] Rep. 187. A fortiori the same power exists with respect to the custody and control of an infant’s property. I have not found any case in which this precise question has been determined, owing doubtless to the requirement heretofore existing that a guardian appointed by a Surrogate’s Court should give a bond; but now that that requirement has been dispensed with by statute it devolves upon the Supreme Court to say whether property of the infant under the control of the Supreme Court shall be allowed to pass into the hands of such a guardian. In my opinion this court should not assent to any such arrangement. I will approve the settlement and direct the proceeds to be turned over to the guardian to be administered by her under the direction of this court upon her giving a satisfactory bond to be approved by me in twice the amount of the sum to be received, or I will direct the proceeds to be paid into this court. Ordered accordingly.