
    WICE v. THE COMMERCIAL FIRE INSURANCE COMPANY.
    N. Y. Common Pleas; General Term,
    
      May, 1877.
    Guardian Ad Litem.—Insolvency.—Security for Costs.
    An appeal by an infant, whose guardian ad litem has become insolvent and has failed to pay costs adjudged, will not be stayed for non-payment of such costs.
    A defendant, against whom an infant plaintiff appears by guardian ad litem, must require the necessary security, if any, promptly.
    The court cannot require new sureties nor stay proceedings because the guardian ad litem fails to pay the costs of a judgment.
    Appeal from an order.
    Stella Wice, by William Wice, her guardian ad litem, brought this action against The Commercial Insurance Company. William Wice was appointed guardian ad litem at its commencement in April 1875; the action was tried and judgment rendered in favor of the defendant, in June, 1876, for $149.30 costs, on which an execution was issued and returned wholly unsatisfied ; and on proceedings by way. of attachment against the guardian under section 316 of the Code it appeared that he had become insolvent and was unable to pay any part of such costs.
    .. An appeal was taken by the plaintiff from the judgment to the general term without security; and on such proof of the insolvency of the guardian an order was made that all proceedings in the action on the part of the plaintiff be stayed until the payment of defendant’s costs. .The present appeal was from that order.
    
      Julius J. Frank (Adolph L. Sanger, attorney), for appellant.
    I. It is the absolute right of any party aggrieved by a judgment, decree or order, to appeal from the same, and to perfect such an appeal it is necessary only to serve notice in writing of the same, on the adverse party and clerk of the court. An undertaking is not necessary (Code, §§ 325, 327, 348; People v. Tarbell, 17 How. Pr. 120 ; Wilson v. Allen, 3 Id. 369 ; Genter v. Fields, 2 Abb. Ct. App. Dec. 253 ; Halsey v. Flint, 15 Abb. Pr. 367 ; Parsons v. Suydam, 4 Id. 134 ; Niles v. Battershall, 18 Id. 161; S. C., 26 How. Pr. 93 ; Ten Broeck v. H. R. R. R. Co., 7 Id. 137 ; Willett v. Stringer, 15 Id. 310; Hartford Co. v. Pendleton, 4 Abb. Pr. 460 ; Eiseman v. Swan, 11 Id. 112).
    .• II. The order appealed from cannot be sustained on the theory that the appellant is in contempt.
    - III. Should a new trial be ordered and the appellant be ultimately successful, she might, if compelled to comply with the order appealed from, be driven to an action against the respondent to recover the moneys thus wrongfully received by it.
    IV. This case is not reached by the provisions of laws of 1876, chap. 431, sec. 12, which applies only to motions. .
    
      William A. Coursen, for respondent,—Cited Dalrymple v. Lamb, 3 Wend. 424; Fulton v. Rosevelt, 1 
      Paige, 178 ; Cook v. Rawdon, 6 How. Pr. 233 ; Ten Broeck v. Reynolds, 13 How. Pr. 462; Litchfield v. Burwell, 5 How. Pr. 345.
   By the Court.—Bosmsoir, J.

The defendant upon the commencement of an action against him by an infant, is entitled to an appearance by such infant by a guardian ad litem, who is pecuniarily responsible for her costs (Fulton v. Rosevelt, 1 Paige, 178 ; Wood v. Wood, 8 Wend. 369 ; Dalrymple v. Lamb, 3 Wend. 424 ; Cook v. Rawdon, 6 How. Pr. 233; Ten Broeck v. Reynolds, 13 Id. 462).

In all these cases the question as to the solvency of the guardian was raised at the incipiency of the proceedings, and no countenance is given in any of them for any dismissal or stay of the plaintiff’s proceedings, especially by way of stay of an appeal from an adverse judgment, by reason of an insolvency of the guardian occurring during the pendency of the action. It is the duty of the defendant to raise this question as soon as apprised of the person appointed as guardian, and if he does not then question his responsibility he aquiesces in his sufficiency to act in that capacity. The court does not, except in this respect and under some statutory enactments, have any just authority to ensure to defendants security' for their costs, and as a general rule where such security is cheerfully given or accepted without question, and as required by statute or rule of court, the subsequent insolvency of the surety furnishes no ground for exacting other solvent parties to be substituted (Hartford Quarry Co. v. Pendleton, 4 Abb. Pr. 460 ; Eiseman v. Swan, 11 Id. 112 ; Willett v. Stringer, 15 Id. 310; Dudley v. Goodrich, 16 Id. 189).

This contingency has only received legislative recognition and been provided for (as far as discussed) in the amendment to section 335 of the Code made in 1859, authorizing the court, on an appeal from a money judgment, to require new sureties in-place of such as have become insolvent. By the order appealed from the plaintiff loses her right of appeal by reason of her guardian ad litem having become insolvent, unless on payment of defendant’s judgment. No precedent or authority is found for such an order after appeal taken from an adverse judgment, or which can justify the extreme results which it produces. The appeal from the special to the general term without giving any security is a matter of right (Genter v. Fields, 2 Abb. Ct. App. Dec. 253), and cannot be trammelled by any such a summary order preventing any review of the justice of the judgment appealed from until the plaintiff has fully satisfied its terms.

In my opinion the order should be reversed with costs and disbursements. 
      
       Present, Robinson, Larremore and J. F. Daly; JJ.
     
      
       Compare new Code of Civ. Pro. §§ 469-477.
     
      
       For similar provision in Hew Code of Civ. Pro, see § 1308.
     