
    LEOPOLD a. MEYER.
    
      New York Common Pleas;
    
    
      Special Term, January, 1860.
    Guardian ad litem.—Attorney.
    Though a guardian ad litem, or next friend for an infant plaintiff, is entitled to ■ have any expenses, necessarily incurred by him in the action, reimbursed out of the proceeds recovered, yet his application to the court for that purpose, must be made before the fund has been paid over by the attorney to the plaintiff.
    After the attorney has paid over the proceeds of the action to the plaintiff, without notice of the claim of the next friend, he will not be held liable to reimburse to the next friend expenses incurred by the latter.
    Motion on behalf of the plaintiff’s next friend, that the plaintiff’s attorney reimburse to him his expenses in the action.
    The facts are stated in the opinion. .
   Hilton, J.

A prochein ami or guardian ad litem for an infant party to an action, is a species of attorney whose duty it is to prosecute for the infant’s rights, and to bring those rights directly under the notice of the court (Knickerbocker a. De Freeat, 2 Paige, 304); but he can do nothing to the injury of the infant, and, therefore, cannot compromise or settle his suit (Miles a. Kaigler, 10 Yerg. (Tenn.) R., 10), and a payment to him is not a legal satisfaction, unless ratified by the infant on obtaining his majority. (Allen a. Roundtree, 1 Speers (S. C.) R., 80.) He is not regarded for any purpose as a party to the suit, and his duty ends when it is prosecuted to final judgment. (Brown a. Hull, 16 T. R., 673; Jarvis a. Boyd, 5 Porter’s (Ala.) R., 388.) And in The People a. N. Y. Common Pleas (11 Wend., 166), it was held that the only reason for his appointment was, that there might be a responsible person before the court accountable for the costs of the action.

Anciently, the custom was to appoint officers of the court, but as was said by Chief-justice Willes, in Slaughter a. Talbott (Willes, 190), tiie practice was altered for the reason that the court would not subject its officers to this liability for costs; and in awarding the attachment then ordered against the next friend for the costs of the suit, it was remarked by Hr. Fortescue Aland, that “ the prochein amis may have satisfaction over against the infants, and generally they take security.”

The same liability still exists, and it is enforced in the same manner. (Code, §§ 316,115.)

The appointment as guardian, or next friend, for an infant plaintiff, cannot he forced upon any person against his consent, nor can he, after his appointment, be compelled to incur, in the prosecution of the suit, any liability other than for the costs of the adversary if the infant fails in the action, and for which he has his remedy against the infant’s estate by a proper proceeding ; and he is not permitted to receive any property of the infant until he has given sufficient security, approved by a judge of the court, to account for and apply the same under the direction of the court (Code, § 420), except such costs and expenses as may be allowed to him by the court, out of the moneys recovered by the infant in the suit. (Rule 62.)

It appeai-s, in this case, that the infant plaintiff recovered a judgment in her favor for over $3000, and married during the pendency of the action. At its commencement the defendant was arrested, and, in lieu of bail, deposited with the clerk of the court $2500, which, after the judgment, was by the order of the court paid over to her attorney. While it was in his hands, she and her husband—who, it appears, had been appointed guardian of her person and estate by the surrogate—joined in a notice to the attorney, forbidding the payment of the money to any person other than such husband and guardian, and the money was subsequently so paid, and the attorney discharged from all claim in respect to it, by a receipt in full, signed by the guardian and the infant plaintiff. Subsequent to this payment being made, the next friend of the plaintiff in this suit notified the attorney not to pay over the money, as he had a claim upon it for the expenses and disbursements made by him as guardian or next friend in the action ; and I am asked to enforce this claim by an order directing its payment- by the attorney, and, in case of refusal, to compel obedience by attachment.

If it was admitted that any part of the money named remained in the hands of the attorney, there can be no doubt of the power, under the rule to which I have referred, and upon general principles applicable to such cases, to allow the guardian, out of the fund, a sum sufficient to reimburse him for his costs and expenses in the action, when the amount expended should be ascertained; and in such a case, after the allowance should be made, and the .attorney had notice of it, any payment thereafter by him to the prejudice of the guardian would probably be at the attorney’s risk and peril; but I can perceive .no propriety in making the order here asked for, after the fund has passed from the custody and control of the court, and has been paid by the attorney to the only person appearing authorized to receive the same, prior to any allowance of the kind referred to being made by the court, and before the attorney had notice of the guardian’s intention to lay claim to any part of the fund.

As I before remarked, the guardian was under no obligation to make advances for the purposes of the suit; and, as he volunteered to make them, he should have seen to having his application for reimbursement made while the fund remained in the custody of the court. Had he applied in time, a proper allowance would have been granted to cover his expenses, but he has seen fit to wait until the money has passed from under our control, and we can afford him no relief in the way he suggests, but must leave him to such remedy as he may have by an ordinary action, or by a proceeding against the moneys in the hands of the husband and guardian.

Motion denied.  