Ten Broeck v. Reynolds

Harris, Justice. The former action was brought by the plaintiff Gibson alone, to recover one-third of the premises described in this complaint. Had the name of Gibson been omihted in this complaint, and the suit been brought by the other plaintiffs, to recover the other two-thirds of the premises, it could not have been pretended that the defendants would have had a right to stay the proceedings until the costs of the first action should be paid. The case would then have been within the decision in Jackson agt. Clark, (1 Cow. 140.) The plaintiffs, though claiming under the same title, could not have been concluded by anything which might have been done in the former suit. Nor can I see that the case has been changed by including Gibson as one of the plaintiffs. It is still true that the other plaintiffs are strangers to the former suit. Being neither parties nor privies, they ought not to be prejudiced by anything that was done. The general rule on the subject is clearly stated in Jackson agt. Edwards, (1 Cow. 138.) It is, that " where the same title to the same premises is drawm in question in a second suit, between parties or privies to the first, the court will order the costs of the first suit to be paid before it will suffer the second suit? to proceed.” In this case, I cannot regard the second suit as between the same parties or their privies; nor do I think the premises in question are to be regarded as the same. This branch of the motion, therefore, should be denied. [464] But for the fact that Gibson has been joined as a plaintiff in this action, the defendants would have been entitled to security for costs under the provisions of the statute, for all the other plaintiffs are non-residents. (2 R. S. 620.) Gibson being irresponsible, as sufficiently appears from the fact that the costs in the former action remain unpaid, the case seems to be within the spirit of the statute which authorizes the defendant to require a non-resident plaintiff to file security for costs. When,' however, there are several plaintiffs, the statute only gives the right to such security when all are non-residents. It would be hardly proper, therefore, to regard the case as within the statute relating to costs in actions by non-residents. But upon the remaining ground upon which this application is founded, I think the defendants are entitled to relief. The guardian of infant plaintiffs is appointed by the court. The appointment is made before the suit is commenced. Of course the defendant has no opportunity to be heard upon the question of his appointment. He is responsible for the costs which may be adjudged against the infant, the payment of which can only be enforced by attachment. It is obvious, that by procuring the appointment of a nonresident guardian, if this- is allowable, this liability for costs may be evaded. The Revised Statutes expressly required that the next friend of an infant plaintiff, as he was then called, should be a competent and responsible person. (2 R. S. 446, § 2.) Though this language is not retained in the provisions of the Code, in relation to the appointment of a guardian ad litem for infant plaintiffs, I have no doubt that it is both the right and the duty of the court to insist upon the appointment of such a person. (See Cook agt. Rawdon, 6 How. 233.) Of what avail would it be to these defendants that the statute declares that the guardian of the infant plaintiffs shall be liable for the costs which may be awarded against them, and that such liability may be enforced by attachment. The guardian, being beyond the reach of this process, the defendants are deprivechof the security which it was intended they should have. Such a person, however competent or well qualified in other [465] respects, ought not to have been appointed, and the plaintiffs’ proceedings must be stayed until the guardian shall give security for the costs which may be adjudged against the infant plaintiffs, or a competent and responsible person, who is a resident of this state, shall be substituted in his place. The. costs of this motion should abide the event of the action.