
    Samuel L. Miller, an Infant, etc., by his Guardian, v. Richard Woodhead.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 29, 1889.)
    
    1. Guardian ad litem—Action by—Costs—When execution against FEBSON OF, MAY ISSUE FOB COLLECTION OF COSTS—CODE ClY. PBO., § 1487.
    Where in an action by an infant plaintiff by his guardian ad litem for a wrong upon which if the plaintiff had recovered, an execution against the person of the defendant mightAavebeen issued under section 1487 of the Code, the defendant is entitled, if successful in his defense, to an execution of this description against the guardian ad litem, for the collection of his costs.
    8. Same — Death of defendant — Execution may issue by personal, REPRESENTATIVES OR BY ASSIGNEE—No LEAVE OF COURT NECESSARY— Code Civ. Pro., § 1376.
    Where such defendant recovering final judgment for his costs has died, execution may be issued, as of course, at any time within five years after the entry of the judgment, by his personal representatives or by theassignee of the payee (Code, § 1376), and this right which the statute gives, is in no way made dependent upon any leave or liberty of the court to-issue it. as the right to an attachment, in such case, previously was. No-interposition of the court is a prerequisite to the right to the execution.
    3. Same—Guardian responsible fob costs—Code Crv. Pbo., § 469—How. .collected—Code Crv. Pro., §§ 3249, 316.
    Where an action is brought in the name of an infant plaintiff, the guardian ad litem, under section 469 of the Code, is responsible for the costs-thereof, and section 3249 of the Code, provides that where costs are awarded against an infant plaintiff, they may be collected by execution, or otherwise, from his guardian ad litem in like manner as if the latter were plaintiff. Section 316 of the old Code, provides that costs adjudged against an infant, might be enforced by attachment, and such an attachment when issued by leave of the court, was enforceable against the person of the guardian. Prior to that, the remedy was still more rigorous, for the attachment issued as a process to punish the guardian for non-payment as a contempt, but under the present statute he is liable to an execution against his person in the same manner, only as though he were the plaintiff in the action.
    Appeal from an order denying a motion for leave to issue an execution against the person of William 0. Towen as guardian ad litem of the plaintiff.
    
      Henry P. Starbuck, for app’lt; John Gray Boyd, for resp’t.
   Daniels, J.

This action was brought by the plaintiff, who was an infant of about the age of three years, to recover damages for an injury alleged to have been sustained by himself, in consequence of the negligence of the defendant. It was tried at the circuit and a verdict recovered in his favor. The judgment upon the verdict was affirmed at the general term, but reversed at the court of appeals. Miller v. Woodhead, 104 N. Y., 471; 5 N. Y. State Rep., 797.

The effect of the reversal was to defeat the plaintiff’s action, and judgment was finally obtained, dismissing the complaint, and for the recovery of the sum of $756.41, costs.

An execution was issued in the action against the property of the guardian, and returned unsatisfied. A motion was thereupon made on behalf of the defendant for leave to-issue an execution against the person of William C. Towen, who was the guardian ad litem of the plaintiff. After the argument, and before the decision of the motion, the defendant died, and it was ordered to abate, unless it should be continued by the "proper parties within six months from the date of the entry of the order. An administratrix of the estate was appointed by the surrogate of the county of Mew York on the 8th of June, 1888, within the six months, mentioned in the order, but as she did not make herself a party to the proceeding, the motion finally abated. She, however, assigned the judgment to Hobert Oakley, who is-the appellant, and he afterwards applied for leave to issue an execution against the person of the guardian, and the-motion made in his behalf was denied by the court, and from the order entered upon the decision, he has taken this-appeal.

The final abatement of the motion made in behalf of the defendant in the action presented no legal objection to the success of the application made on behalf of the assignee. It decided nothing, but simply terminated the proceeding on the motion, without any decision whatever as to the rights of the defendant to the execution against the person of the guardian. It was therefore no answer to the application made on behalf of this assignee.

The action was brought for a wrong, upon which if the plaintiff had recovered, an execution against the person of the defendant might have been issued. Code Civ. Pro., § 1487. And as the plaintiff failed to recover finally in the action, the defendant was entitled to an execution of this-description for the collection of the costs recovered by him.

The Code, by section 1376, has further provided that-“where the party recovering the final judgment has died, execution may be issued at any time within five years after the entry of the judgment, by his personal representatives, or by the assignee of the payee, if it has been assigned, and. the execution must be indorsed with the name and residence of the person issuing the same.

The final judgment in the action was recovered on the 15th of November, 1887, and this section accordingly secured the right to issue an execution for its collection at the time when the application for leave to issue it was finally decided. When the action has been brought, as this was, in the name of an infant plaintiff, the Code, by section 469, has declared that his guardian shall be responsible for the costs thereof. This is an absolute and unqualified liability. And by section 3249 of the Code of Civil Procedure, it has been further declared: “Where costs are awarded against an infant plaintiff, they may be collected by execution or otherwise from his guardian ad litem, in like manner as if the latter was the plaintiff.”

This was a modification as well as an amelioration of the preceding law. For by section 316 of the Code of Procedure, it was declared that “costs adjudged against an infant plaintiff might be enforced by attachment.” And ■such an attachment, when issued by leave of the court, was enforceable against the person of the .guardian. Prior to that enactment, the remedy was still more rigorous. For the attachment issued as a process to punish the guardian for non-payment, as a contempt. Wice v. Com. Fire Ins. Co., 8 Daly, 70; Grantman v. Thrall, 31 How., 464. The last change which has in this manner been effected by the Code of Civil Procedure, has relieved the guardian of some of the severity of the preceding practice. For it has rendered him liable to an execution against his person in the same manner, only as though he were the plaintiff in the action. And this execution, by section 1376, maybe issued in a case where the judgment creditor is deceased, either by his personal representatives or by the assignee of the judgment when it has been assigned. The right to the execution is absolute and unqualified. And it has been further provided by section 1375 of the same code, that a party recovering a final judgment, or his assignee, may have execution thereupon, of course, at any time within five years after the entry of the judgment, except where it may otherwise be specially provided for by law, and no other provision of law applicable to this case has been cited or discovered. Under these sections of the Code of Civil Procedure, therefore, the assignee became vested by virtue of his assignment, with the unqualified right to issue an execution against the person of the guardian, for the collection of these costs. That right has been in no way made dependent upon any leave, or liberty of the court, as the right to the attachment previously was.

No interposition of the court either expressly, or by any implication, has been declared a pre-quisite to the right to the execution. But it maybe issued, “of course,” within five years after the entry of the judgment, and the right to so issue it has been vested in the personal representative, or the assignee, after, the decease of the judgment creditor. There was accordingly no necessity whatever for either of the motions, which were made, and as the right to issue the execution has been absolutely provided for in this manner, it could not be abridged, or taken away, by the decision made on the determination of either of the motions. What should have been done on the final application was to have dismissed it as entirely needless. In that respect the order should be modified, directing the dismissal of the motion, as unnecessary, and as so modified, affirmed, without costs to either party.

Van Brunt, Oh. J., and Brady, J., concur.  