
    BUERMANN v. BUERMANN.
    N. Y. Superior Court; Special Term,
    
      April, 1886.
    Action for Gratuity Fund of an Exchange.—Parties; plaintiff ; GUARDIAN AD LITEM OR GENERAL GUARDIAN.
    Under the provisions of the Code of Civil Procedure, a general guardian cannot maintain an action in his own name to recover personal property of his ward, but such an action must be brought in the name of a guardian ad litem, properly appointed.
    Demurrer to complaint.
    Charles Buermann and another, as executors, &c. of August Buermann, deceased, and August Buermann and others, as general guardians for the minor children of the deceased, brought this action against the New York Produce Exchange, and Eva Buermann, widow of the deceased, individually and as executrix of his will.
    The complaint alleged that August Buermann died while a member of the New York Produce Exchange, and that, under its regulations, upon his death, his widow and children were entitled to a gratuity fund of $5,000 from the Exchange ; that his wife having •released her interest to him during his life-time, he had, by his last will and testament, given the fund solely to his children ; and that the Exchange refused payment, otherwise than one-half of the fund to the widow and the other half to the children, or their general guardians, and demanded judgment that the whole sum of $5,000 be paid to the plaintiffs, and that the widow be compelled to execute a release to the Exchange.
    The defendant, executrix, demurred to the complaint upon the grounds (1) that the general guardians had no right or power to sue in their own names to recover the share of the money belonging to the infants ; (2) that they had not legal capacity to sue ; (3) that no guardian ad litem, had been apppinted for the infants; (4) that the general guardians are improperly joined as parties with the other plaintiffs ; and (5) that there is a defect of parties in that the infants have not been made parties plaintiff, by guardian ad litem,.
    
    
      George F. Langbein, for the executrix and for the demurrer.
    —An infant can only sue by guardian ad litem appointed by the court, and he may be the general guardian ; but the latter cannot sue in his own name Code Civ. Pro. §§ 468-470, 472, 474, 476). The statutes (3 R. S. [6 ed.] 167), gave power to a father to appoint a guardian by deed or will, who may maintain all proper actions, &c., which a guardian in socage might, and the latter could only sue as to lands of an infant under fourteen years of age (Byrne v. Van Hoesen, 5 Johns. 66). By 3 R. S. (6 ed.) 73l, it is clear that an infant must sue in his own name by a competent and responsible guardian ad litem. See also, Matter of Frits, 2 Paige, 374, 376 ; Grantman v. Theall, 19 Abb. Pr. 308; Hoyt v. Hilton, 2 Edw. Ch. 202 (where the chancellor would not allow the father of infants who had been, appointed their general guardian to sue, to recover legacies without being first ¡appointed guardian ad litem); Bradley v. Amidon, 10 Paige, 235; 2 Kent's Com. (12 ed.) 228, 229 ; Cro. Jac. 4; Cro. Eliz. 424; 1 Roll. Abr. 287, pl. 3, 2; Mockey v. Grey, 2 Johns. 192; Alderman v. Tirrell, 8 Johns. 418; Bullard v. Spoor, 2 Cow. 430; Bradwell v. Weeks, 1 Johns. Ch. 325; Matter of Howes, 2 Edw. Ch. 484; Hill v. Thatcher, 3 How. Pr. 407; Hulburt v. Newell, 4 Id. 93; Litchfield v. Burrell, 5 Id. 341, 345; Hoftailing v. Teal, 11 Id. 188; Croghan v. Livingston, 6 Abb. Pr. 351, 352. Where real estate of the infant is concerned, the action can only be brought by the guardian in socage or the general guardian, and not by the infant (Chapman v. Tibbitts, 33 N. Y. 289; Cagger v. Lansing, 64 Id. 417); and. the objection in such case as to the party plaintiff, must be taken by demurrer (Seaton v. Davis, 1 Supm. Ct. [T. & C.] 91; Holmes v. Seeley, 17 Wend. 78; Code Civ. Pro. § 1686; More v. Deyoo, 22 Hun, 208).
    II. In the case of Thomas v. Bennett, 56 Barb. 197, sustaining an action by a general guardian for pension money due the infant, attention of the court was not called to Hoyt v. Hilton, 2 Edw. Ch. 202, and Bradley v. Amidon, 10 Paige, 235, where suit for share of infants in an estate of a deceased person was dismissed because the general guardian had no right to sue, and not because the shares had not been ascertained. White v. Parker, 8 Barb. 48,52, was relied on, entirely ignoring 3 E. S. (6 ed.) 731, which expressly determined the question, and not the provisions of Id. 167. Cases showing the power of executors, and of committees of lunatics, &c., have no application because the statutes expressly authorize suit by them (1 R. S. 446, 447; 3 R. S. [6 ed.] 732 [superseded by Code Pro. § 471]; L. 1845, p. 91, § 2). No statute ever gave general guardians such authority. The rights and property of infants were never the rights and property of the general guardian ;• the latter is only entitled to thepossesshmand care of the personalty, but the personalty is the property of the' infant, and must be sued for in his name. See Segelken v. Meyer, 14 Hun, 593; 22 Id. 6 ; aff’d, 94 N. Y. 473, sustaining suit by guardian ad litem to recover personalty of the infant. Also 1 Abb. Forms, ch. 5, 51, head-note; 7 Abb. N. Y. Dig. title Guardian ad litem, and Guardian and Ward; Hahn v. Van Doren, 1 E. D. Smith, 411; Wood v. Wood, S Wend. 357.
    III. The provisions of 3 R. S. (6 ed.) 167, were not repealed by the Code of Civil Procedure. L. 1880, c. 245, did not repeal § 3, which is still law. But the provisions of 3 R. S. (6 ed.) 731, were repealed by the act of 1880, and Code Civ. Pro. §§ 468, 469, 472, 475, 477 took their place. It is very plain, therefore, that where an infant has a right, Tie is entitled to maintain an action thereon, and a guardian ad litem for the infant plaintiff mast be appointed.
    
      Otto Meyer and Frederick A. Cord, for the plaintiffs, opposed.
   O’Gorman, J.

—This action is brought by the gen eral guardians of infants, to assert their claim against the New York Produce Exchange for $5,000,—which became due and payable by that association to-the widow and next of kin of August Buermann, deceased, and against Eva Buermann, the widow, who demur on the ground, among others, “that the general guardians had no right or power to sue in their own names to recover this property belonging to the infants, and that suit could only be properly brought by a guardian ad litem P

The question raised by this demurrer has not been altogether free from doubt.

In Segelken v. Meyer, 94 N. Y. 473, the court say, that it does not appear to’have been ever decided by that court. It held, however, that that action was well brought in the name of the guardian ad litem.

The Code of Civil Procedure, which in sections 469, 470, and 476, requires that before a summons is issued in the name of an infant plaintiff, a competent person must be appointed to act as his guardian ad litem, and provides also that the general guardian may be appointed as guardian ad litem, sufficiently expresses the intent of the law as it now is, viz., that by the intervention of that officer alone, an action on behalf of an infant can be brought, at least in cases where the assertion of the infant's claim to recover persona] property is concerned.

The case of Cagger v. Lansing, 64 N. Y. 417, was decided before the adoption of the Code of Civil Procedure now in force. It was an action brought by the general guardian of infants to recover real estate/ and it was held, that their rights in such an action were enforceable by their mother as guardian in socage (Id. p. 426).

The case at bar is concerned with the assertion of the claim of infants, not to real estate, as to which alone a guardian in socage could have represented them in an action, but only to personalty, and the case last cited throws, therefore, no light on the present inquiry.

In my opinion, the necessity of clear and uniform practice under the provisions of" the Code of Civil Procedure above referred to, requires that the rule should be recognized, that in cases such as that at bar, the action should always be brought in the name of a guardian ad litem propeily appointed, and that, if brought in the name of the general guardian, they are not well brought.

For these reasons, this demurrer is sustained, with costs.  