Schoen v. Schlessinger

Potter, J. This is a motion for an attachment against Leonard Schoepf, who was the guardian ad litem for the plaintiff, to compel the payment of a portion of the costs of this action awarded to the defendant by the judgment herein. The plaintiff became of full age during the pendency of the action, after which an order was made discontinuing the guardianship but retaining his liability for costs up to that period. The defendant afterwards obtained a judgment of dismissal of the action with costs. The costs were adjusted upon notice, and a judgment for the portion of the costs which accrued during Schoepf’s guardianship were adjusted at ninety-three dollars and seventy-eight cents, and against the plaintiff for the balance, and a judgment was entered against each for the respective sums so adjusted. A demand for the costs entered in the judgment against Schoepf was made, and he refused to pay them. This is a motion for an attachment against him for such non-payment. An objection is made, that a judgment in form for costs against the guardian with a provision for the issuing of an execution to enforce their collection it having been entered, the plaintiff cannot resort to the remedy by attachment, but must resort alone to the execution. I think the judgment was improperly entered against the guardian ad litem for costs. It should have been entered in form against the plaintiff for the whole costs of the action. This I understand to be the practice as well as the theory. Section 469 of the Code of Civil Procedure combines section 115 and part of section 316 of the old Code. Section 316 is still in force. By it the judgment for costs is to be against the plaintiff, but the guardian ad Utem is made responsible for them, and payment thereof is to be enforced by attachment. The costs ought to be collected by attachment of the guardian; should have been in the judgment against the plaintiff, and not in the judgment against the guard [494] ian. But should 'not the court allow the judgment to be amended ? The costs have been adjusted upon notice, and no appeal from the amount has been made. They are, undoubtedly, correct and just. The prayer is for general relief, and the court has ample authority under it to correct technical errors in practice and do justice between the parties. If these costs, ninety-three dollars and seventy eight cents, had been inserted in the judgment against plaintiff, the law would make the guardian liable for the payment of them, and an attachment may have issued against the guardian for their collection, as a matter of course and of legal right (Grantman agt. Thrall, 31 How., 464). I think defendant should be allowed to amend his judgment against the plaintiff by inserting all the costs, nunc fro tuno, and, also, by striking out the judgment for costs against the guardian, in the judgment. As no demand was necessary before the issuing of the attachment, I can see no occasion or reason, after allowing the above amendment, to put the defendant to the unnecessary labor of making a new motion for the attachment. The attachment under this section of the Code is the mere process by which the guardian is brought before the court. When brought within the jurisdiction by this means, the court will hear what may be ui'ged by way of poverty, or any other reason or excuse the guardian may have, to relieve him from the payment of the costs (Morrison agt. Gester, 11 Hun, 621). Ordered accordingly, that said amendments be made and an attachment issue against Leonard Schoepf for ninety-three dollars and seventy eight cents; no costs of motion.