
    George Hill, Appellant, v. Robert P. Lee, Individually and as Executor, etc., of Walter N. Degrauw, Respondent.
    
      Guardian ad litem for a defendant—Ms costs in. a foreclosure suit are not recover-. • able from the plaintiff.
    
    The complaint in an action set forth the proceedings which had been taken in an action for the foreclosure of a mortgage in which the- plaintiff .was appointed guardian ad litem of an infant defendant, and appeared, and, when, requested to do so, by the attorney for the plaintiff, served his answer as guardian'; that the usual judgment of foreclosure and sale was entered, which provided, among other things, for the payment to the plaintiff of his costs .and disbursements, and that his services as guardian were rendered for the benefit of the plaintiff in that action, the present defendant, and upon his implied request. The sale resulted in a deficiency, and the guardian ad litem did not receive his costs.
    The defendant interposed a demurrer to the complaint.
    Held, that the complaint did not state a cause of action;
    That the present plaintiff could not recover his costs under the foreclosure judgment, as there had been no adjudication that, the costs should be paid by the mortgagee plaintiff;
    That he could not recover them under his allegation of an implied promise by the mortgagee to pay the costs, as the allegation that the guardian's services were rendered for the mortgagee plaintiff, and upon the latter’s implied request, was a mere conclusion of law not borne out by the facts, which showed that the services were really rendered for the protection of the infant;
    That the mortgagee plaintiff was an adverse party, and that the service of the answer could not in any sense be said to have been made, for his benefit;
    That the allegation that the attorney for the mortgagee plaintiff requested the guardian ad litem, to serve the answer was of no moment;
    That the complaint should have been dismissed, but not upon the merits.
    Appeal by the plaintiff, George Hill, from a- final judgment of the Supreme Court in favor of- the defendant, entered in the office of the clerk of the county of Hew York on-the 28th day of January, 1896, upon the decision of the" court. rendered, after a trial at the Hew York-Special Term sustaining the defendant’s demurrer to the complaint, and dismissing the complaint' upon the merits,- with notice of ,an intention to. bring up for review an interlocutory judgment entered in said clerk’s office on the 28.th day of December, 1895, sustaining said demurrer, and also an order entered, in said clerk’s office on the 23d day of December, 1895, directing that the said demurrer of the defendant be sustained.
    The complaint alleges in substance, that one Sarah D. Williams made and executed in 1889 to one Degrauw a mortgage on real property in the city of Brooklyn to secure payment of her" bond for $1,000 ; that Mrs. Williams died in 1894, leaving three children, one of whom- was Emma H. Williams, an infant; that thereafter an action was begun by Degrauw to foreclose this mortgage, in which said infant, Emma H. Williams, was made a party defendant;. that the complaint prayed, among other things, that each of the defendants be barred and foreclosed of all right in and title to the ]3rop-erty, and that there be paid to the plaintiff, out of the proceeds of sale, the mortgage debt with interest and costs, and the expenses of 
      sale ; that upon the petition of her father and the present plaintiff’s consent, the latter was appointed guardian ad litem of Emma H. Williams on January 15, 1895, and was authorized.and directed to appear and defend the action in her behalf; that thereupon he served a notice of appearance for the infant in- the action; that on January 18, 1895, the attorney for Degrauw requested Mr. Hill to, serve his answer as such guardian, which he accordingly did ; that such proceedings were thereupon had, on notice to Mr. Hill, that the usual judgment of f oreclosure and sale was entered, which provided, among other things, for the payment to Mr. Hill as guardian ad litem, out of the proceeds of sale, of his costs and disbursements, amounting to sixty-eight dollars and eighty-five cents; that Mr. Hill’s services were rendered by him as guardian" ad litem of Emma H.Williams for the benefit of Degrauw, the plaintiff in the foreclosure action, and upon Degrauw’s implied request. It also appeared that Degrauw died pending the foreclosure" action, and that it was continued by the present defendant, as his executor ; and ■that the property sold for much less than the amount of the mortgage debt; in fact, that - it was bid in by the present defendant for but fifty dollars, and that Mr. Hill lias not been'paid the sum directed to be paid him by the judgment. There is a-further allegation that the referee’s report, of sale as filed included in the-deficiency statement the amount of Mr.' Hill’s costs. There is no allegation' that any deficiency judgment had been entered. The complaint was demurred to upon the ground that it did not state facts sufficient to constitute a cause of action, ' • .
    
      George Hill, appellant, in person.
    
      Theo. F. C. Demarest, for the respondent.
   Barrett, J. :

• The complaint avers that it was adjudged in the foreclosure action tliat the mortgaged premises be sold, and that the costs of the guardian -ad litem be paid out of the proceeds of sale. There is no averment that it-was adjudged that these, costs should be paid by the mortgagee plaintiff. It follows' that the present plaintiff (the guar-' di'an ad Utem in the foreclosure action) cannot recover upon the judgment, nor can he recover upon an implied promise Upon the part of the mortgagee plaintiff to pay his costs. Ho express promise is averred. The averment is, that the guardian’s services were rendered for the benefit of the mortgagee plaintiff and upon the latter’s implied request. But this is a mere conclusion of law, which is not borne out by the facts stated, and which is not admitted by the. demurrer. The services were not in fact rendered for the benefit of the mortgagee plaintiff, but for the protection of the infant. Any act of one’s adversary whereby the litigation is expedited may, in one sense, be said to be beneficial; but the interposition of an answer, however promptly, is surely not, in a legal sense, an act done for the benefit of the plaintiff. If the mortgagee plaintiff had been unsuccessful in the foreclosure action the court could have awarded costs against him in favor of the guardian ad litem, the same as in favor of any other successful defendant; but he cannot well be charged with a defendant’s costs where he was entitled to and has secured his decree as against that defendant. The court had authority to award, as it did, costs to be paid out of the proceeds of the sale. If these proceeds were insufficient, and the infant had an independent estate, the court could still protect the guardian in a. proper proceeding by directing payment out of the infant’s estate. But there the power of the court ends, and there the guardian’s rights end. He cannot look to the successful plaintiff personally. The latter has no contract relation with him, express or implied.. As well might the committee of a lunatic or the representative of a" deceased judgment creditor claim such contract relation, merely because the mortgagee plaintiff, to secure a valid decree, must bring him in.

The averment that the attorney for the mortgagee plaintiff requested the guardian ad litem to serve his answer of is no moment: That was simply a request that the guardian do his duty by the infant, and do it properly. It was certainly not a request to perform a service for the plaintiff in the foreclosure action. This suggestion of the appellant exposes the fallacy of his contention. For how can a plaintiff contract with propriety for a service to himself, the foundation of which is a service to his adversary ? And if he cannot make an express contract, how can one be implied? The guardian is appointed to protect the infant by defeating the plaintiff if there be just ground of defense. He must look into the case to seewhether there be such ground of defense. Of what value would' his services be to the infant were he the hireling of the plaintiff ? Even where he finds no defense, and merely submits the infant’s interests to the courts, he still must see to it that the plaintiff secures no greater judgment than he is legally entitled to. A person in such a position cannot reasonably be likened to the referees or others who are called on by the court to perform independent functions of aii official character in the cause or in the execution of the judgment. ' The plaintiff is undoubtedly liable for the fees and charges which are incident to the procedure. But these necessary expenses of the litigation are entirely different from the statutory costs awarded to'parties aS between each other, and from the charges of' attorneys for their services to their client's.1 The services of the guardian ad Mtem'are not analogous to the necessary disbursements incurred in the cause. They are independent services rendered to the infant for his protection, and not in any just sense rendered to the plaintiff. ■■'

The order and interlocutory judgment should not, however, have-provided. for; a dismissal of the complaint in terms “upon the merits:”' The effect bf the judgment should not have been thus, adjudicated. / The judgment should have been in the usual form. It should be modified by striking out the words “ upon the merits ” wherever these words appear therein, and, as thus modified, affirmed, without costs of 'this appeal, and with leave to the plaintiff to amend his complaint, if so advised, within twenty days, upon payment of the costs awarded by the Special Term.

Yah Brunt, P. J., Bumsey, Williams and Patterson, JJ., concurred. ■

judgment modified as directed' in opinion, and, as modified, affirmed, without costs of appeal, and With leave to plaintiff to amend complaint within twenty days upon payment of costs in the court below.  