
    In the Matter of the Application of William Bayard Cutting to be Discharged as Trustee under the Last Will and Testament of Charles Kennedy Hamilton, Deceased. (No. 1.) Louise Savage Tyng, Individually and as Guardian of the Person and Property of Eleanor Margarette Hamilton, Appellant; William Bayard Cutting, Respondent.
    
      Power to appoint a guapdian ad litem—practice in a special proceeding—an appointment of a guapdian nominated by the adverse party will be vacated.
    
    
      ' Where an infant beneficiary of a trust, over, the age of fourteen years,-and a resi- • dent of the State of N,ew-Jersey, is served, in:the State of New York, with an order made in a special, proceeding instituted by the trustee, in the Supreme ■ Court of the last-mentioned State, to obtain a dischargé from,his trust, requiring her to" show cause why a'güardia.n ad litem 'should ribt be'appointed to represent her in such proceeding, the Supreme Court of -the State óf New - York ". has,, upon the failure .of the infant to apply for .the appointment of .a guardian 
      ad litem prior to the return day mentioned in the order, power to appoint such a guardian.
    Where, however, the Supreme Court of the State of New York appoints a guardian ad litem, nominated by the adverse party in express violation of rule 49 of the General Rules of Practice, the order appointing the guardian ad litem so-nominated should be vacated.
    
      Semble, that the practice to be followed in the appointment of such guardian, is; analogous to that prescribed in section 473 of the Code of Civil Procedure relative to the appointment of a guardian ad litem for a .non-resident infant defendant in an action.
    Appeal by Louise Savage. Tyng, individually and as guardian of the person and property of Eleanor Margarette Hamilton, appearing in this proceeding specially and for the purpose of this appeal only,, from an order of the Supreme. Court, made at the New York' Special Term and entered in the office of the clerk of the county of New York on the 30th day of December, 1898, denying her motion to vacate an order appointing a guardian ad litem of. the said Eleanor Margarette Hamilton.
    
      Morris A. Tyng, for the appellant.
    
      J. Archibald Murray, for the respondent..
   Ingraham, J. :

The proceeding was commenced by the presentation of a petition by a testamentary trustee asking to be allowed to resign as "such trustee, and that his accounts be judicially settled and allowed. An order to'show cause was granted requiring the beneficiary of such trust, Eleanor Margarette Hamilton, an infant over the age of fourteen years, who resides with her general guardian, Louise Savage Tyng, at Summit, New Jersey, and others interested in the estate, to show cause at a Special Term of this court held in the county of New York, why the prayer of the said petition should not be granted. It appears that a copy of the petition and the order to show cause was served upon the infant, Eleanor Margarette Hamilton, in the city of New York on September 3,1898. 'On. September 17,1898, the petitioner in this proceeding presented a petition to the court, reciting the presentation of the petition, to be allowed to resign and to have his accounts settled as trustee; that Eleanor Margarette Hamilton was ■ an infant over the áge of fourteen, who was a non-resident of the State of New York, residing at Summit, in the State of New Jersey, with her aunt, Louise Savage Tyng, who was the guardian of her person and property, appointed by the will of the decedent; that no previous or other application for the appointment of a guardian ad Utem had been made; that Alfred F. Seligsberg, an attorney and counselor of this court,"was a responsible person and competent to understand and protect the rights of the said infant, and praying that the court make an order designating and appointing the said Selisgberg or some other suitable and competent person as guardian ad litem of the said infant. Annexed was a consent "of the proposed guardian to become the guardian ad litem of the infant; and upon that petition, ex parte, an order was entered appointing the said Seligsberg guardian ad litem of the said infant, unless she or some one in her behalf procured such a guardian to be appointed within ten days after the service of a copy of the order as therein directed. A copy of this order was served upon Louise Savage Tyng, the general guardian of the said infant, whereupon she, upon an affidavit setting forth the appointment of the said' Seligsberg as guardian ad litem, alleged that such guardian was appointed upon the nomination of the petitioner, an adverse party to the said infant, in this proceeding, and that no proof was presented to the court at the time of the making of the application for the said order that the order to show cause by which this proceeding was begun, or any other process of this court, was ever served on the said infant Eleanor Margarette Hamilton.

The petitioner, in reply to this application, presented to the court the original order appointing the guardian ad litem, with the petition upon which the order was granted and with proof of service of the order to show cause upon the infant on the 3d day of September, 1898. This' order to show cause, thus served upon this infant, was granted by a justice of this court on August 23, 1898, and required the infant, with others, to show cause on August 29, 1898, why the prayer of the petition, and such other relief as might be proper, should not be granted. Annexed to this order to show cause were adjournments of the return day of the order, one to September 2, 1898, and a subsequent one, dated September first, to September 9, 1898. It appeared by the affidavit of the petitioner’s attorney that on September 9, 1898, the return day of the said order to show causé, Morris A. Tyng, an attorney and counselor at, law and the husband of Louise Savage Tyng, the general guardian of the said infant, appeared in. court and stated that he appeared to present a preliminary objection, on the ground that certain persons named as ■ -parties 'had- not -been pWsoriáílly served with the said order to show cause; that thereupon the 'court, before whom the said application was madej.gqainted'.an adjournmenfc-uotil September 16, 1898, without hearing:the- said-preliminary' objections; that on September 16, 1898,-the parties again-appeared-before the court and the deponent, ■at the request of "the said "Tyng, exhibited, to him the proofs of -service,. attached to-said-original order to show cause-, Upon the said Eleanor Margarótté: -Hamilton and others;. that up to- that time no application had beén made on behalf of the said Eleanor Margarette Hamilton for the appointment of a guardian ad litem on her own behalf; that on--September 16; 1898, the'proceedings were further adjourned to' September. 27, "1898, and on September seventeenth the order sought to: be .vacated appointing the gu'ardian. ad litem ■ was granted. . •

■ The infant having -been served with a copy of the order-to show cause within this State, which order required her to show cause on -September 9, 1898, and having failed prior to that time to apply for the-appointment of a guardian ad litem,.she being over the age of fourteen yearsj it would seem that the court had power to appoint a guardian ad litem to represent her upon the hearing. - The infant having "failed to- apply for the-.appointment of a‘guardian ad litem, the-court was bound to protect her by appointing a. proper person to represent her, both, upon the hearing of the order and upon the subsequent proceedings. Section 473 of the Code of Civil Procedure, although. applicable only to an -action,- would present by ■analogy th.e proper- proceeding to be pursued in the-appointment of a guardian ad litem. It is settled that service of process upon the. infant was. not; essential to." confer jurisdiction upon the court. (Smith.v. Reid, .134 N. Y. 568, 573.), But here the court had jurisdiction by reason of .the service Of. the order to. show cause and the petition on the infant" within this State.. The petitioner, in the proceeding presented to t-lie court- -a petition for the appointment of such a guardian. That petition nominated "a person to be appointed guardian ad litem, and the court accepted such nomination, appointed, the person so nominated by the petitioner, who., in this proceeding at least, was an adverse party to the infant. This was in express violation of rule 49 of the General Rules of Practice which provides that no person shall be appointed guardian ad Utem who is nominated by the adverse party. The court having thus, in violation of the rule which has. the force of a statute, appointed as a person to protect the rights of this infant one nominated by the adverse party, I think it was the duty of the general guardian of the infant to call the attention of the court to the violation of this rule and to request that the order so made be vacated, and that upon the attention of the court being so called to that fact it was the duty of the court to vacate such order.

It is quite apparent that the protection of infants, especially in proceedings of this character, where a decree upon the accounting discharges the trustee from any liability to the infant, requires that this rule be rigidly enforced. The rights of infants can only be protected upon such an accounting by the active and intelligent efforts of a guardian ad litem whose only interest is the full protection of the infant’s rights, and it is quite apparent that a guardian ad litem nominated by the party whose accounts are to be passed might be exposed to influences other than those which should control a guardian ad litem, whose sole object should be to procure the recognition of all the infant’s rights. For this reason, therefore, we think the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Van Brunt, P. J., Barrett, Rumsey and McLaughlin, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.  