
    Edward C. Perkins, as general guardian of the estate of Emily L. Middleton, an infant, v. John Stimmel and Samuel McCreery.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 30, 1886.)
    
    1. Guardian—Bond of—Omission of date is unimportant—Date is determined BY DELIVERY AND FILING.
    In an a' tian upon a bond given by a guardian of an infant upon his appointment by the surrogate’s court. I-leld, the omission of the date was of no importance, that the time of delivery determined the date, and the delivery and filing of such a bond in the surrogate’s court controlled the question of date where it is not inserted, and also where it is, when the question of date becomes important.
    2. Same—Penalty of bond—May be filled in by clerk—Must be fixed BY SURROGATE.
    The penalty of the bond was filled in by a clerk of the surrogate’s court at double the valuation of the infant’s property as stated in the petition. Held, that this did not establish an omission by the smrogate to “fix the amount of the bond” as required by statute.
    3. Same—Action on—By whom brought.
    Such an action may properly be brought in the name or the infant by her guardian, but some authorities in this state allow it to be brought by the guardian as suc'i. An objection as to this may be raised by demurrer, but ought not to be fatal at the end of the trial.
    4. Same—When accounting of guardian necessary and when not.
    Before an action can be brought against sureties on the bond the court will require an accounting where it will be necessary or availing to establish the extent of tlieir liability, if practicable, hut "where it is of no use or advantage to the sureties it will not be required.
    6. Same—Conditions in bond—What deemed independent.
    
      Held, that an accounting was one of the conditions of the bond for a breach of which pie sureties were liable, but that the primary condition being that the guardian “will in all things faithfully discharge the trust re posed in him,” the conditions of the bond were independent and divisible"
    Motion for new trial on exceptions directed to be heard at the general term in the first instance.
    
      H. H. Davis and E. P. Wilder, for deft’s; John C. Gray, for pl’ff.
   Davis, P. J.

This case bristles with objections and exceptions, but they are mostly of a technical and unimportant character and need only the most cursory notice. The action is upon a bond given by a guardian upon his appointment by the surrogate’s court, and many of the exceptions relate to its form, and to the manner in which it was drawn, arid its penalty inserted and its date omitted, etc., on and before the filing of it in the surrogate’s court. The omission of the date is of no importance. The time of delivery determines the date and the delivery and fifing of such a bond in the surrogate’s court controls the question of date where it is not inserted, and also where it is when the question of date becomes important. A clerk of the surrogate’s court filled out the bond, and in doing so inserted the penalty at double the valuation of the infant’s property as stated in the petition. It is insisted for this reason that the surrogate did not “fix the amount of the bond,” as required by the statute. This objection is a non sequitur. It does not follow because the scrivener filled in the penalty in the blank that the surrogate did not fix it. The bond was afterwards duly filed, and upon it and the other proceedings in the case, the surrogate in due form ordered and issued the letters of guardianship in which he recites that ‘ such guardian has duly executed and delivered a bond pursuant to law for the faithful discharge of his duty, and we being satisfied of the sufficiency of such bond,” etc., etc., do constitute and appoint him such guardian.

This sufficiently answers all objections to the bond, so far as they relate to its execution, filing and penalty.

Nearly or quite all the other objections touching the bond itself and the proceedings preliminary to the letters are answered in the same way.

There are two questions raised by the exceptions more serious in their nature. The first is whether the suit upon the bond should have been brought in the name of the infant by the plaintiff as her guardian, instead of by the plaintiff as guardian of the estate of the infant.

There is no doubt under the authorities that the action might properly have been brought in the name of the infant by her guardian. Code, §§449, 468, 469, 470; Segelken v. Mayer, 94 N. Y., 473; Buerman v. N. Y. Produce Exchange, Daily Register, 1886, 785; Bradly v. Amsdon, 10 Paige, 235.

Probably that would have been the better practice, but there are authorities which allow the suit in its present form on such a bond. Thomas v. Bennett, 56 Barb., 197; Hauenstein v. Cull, 59 How. Pr., 24; Coakley v. Mahar, 36 Hun, 157. The question has no substantial merit. The cause of action is precisely the same in either case, and the object and result are the same if a recovery be had. The guardian in fact recovers as such in either action and takes the property as guardian, and is bound to account to the infant for the judgment and its proceeds. The question could have been raised at the beginning of the suit by demurrer as well as at the end of a trial. When raised at the trial it ought not to be fatal. Every element is present by which the formal change can be made by amendment, if necessary, and the interests of justice demand it. Nobody has been misled to his prejudice, and no good reason exists why the amendment should not be ordered even now if the plaintiff elects to make it.

In such a case as this, although the bond is in form to the infant, it becomes on default an asset of her estate which her guardian is entitled to possess and control, sue for and recover, and is bound eventually to account for. On recovery, as has already been said, he takes the pro-' ceeds as his, in his relation as guardian, and is entitled to keep and defend possession, and to invest and control and finally account for the same. There is no sound reason why he may not sue in his capacity of guardian, the question being precisely the same, and the result the same as when he sues in the infant’s name by himself as guardian. In the conflict of authority we shall hold the suit properly brought as it is, but with leave, however, if the plaintiff elect to do so, to change the title by a transposition of names, which seems to be all that is necessary.

The other and still more difficult question is whether an action will he on the bond against these defendants who were sureties without an accounting before the surrogate. The guardian who was the principal in the bond is dead. He died intestate, and the public, administrator of the city of New York was appointed to administer upon his estate. He was able to find nothing except six dollars and forty-one cents and a,n old desk containing a quantity of stationery and papers. He found none of the assets belonging to the infant. To have called the public administrator to an account would have been an idle expense, and there was no one else to account. The guardian died about the 23rd of October, 1884, as the pleadings admit. He filed his sworn account with the surrogate January 3, 1884, showing $12,137.40 then in his hands. It was proved that in September, 1884, he converted twenty-five shares of the Mercantile Trust Co., valued in his inventory at $3,500, by transferring from himself as guardian to himself as an individual and selling it afterwards.

To require an accounting under such circumstances would be a futile and idle ceremony, a vain thing, and vain things are condemned by legal maxims. Yet if the language of the bond demands it, the law must respect the demand.

An accounting is one of the conditions of the bond for a' breach of which the sureties are liable; but it is not the only condition; the primary condition is that the guardian “will in all things faithfully discharge the trust reposed in him.” This condition was broken in this case, and so broken that the performance of the other conditions are rendered nugatory by the misconduct of the guardian.

Where that state of things clearly appears to require the infant to demand and compel a legal accounting before the surrogate or some other court, which it plainly appears will result in no benefit to her or to the sureties, seems not merely unnecessary but unjust. The conditions are divisible, and unless all must be broken before the sureties can be sued, then it is enough that the primary one is broken in such form as to show that the others are of no value.

In Girvin v. Hickman (21 Hun, 316), in a somewhat similar case, it was held that an accounting before suit brought on the bond was not necessary, and the court after reviewing the cases said: “It is obvious from these cases that an accounting by the guardián is not always a prerequisite to an action against the sureties upon the bond, and there are many special circumstances in which it may be dispensed with. * * * But if the case is such that

the extent of the guardian’s liability appears without an accounting, why should an accounting be required befere suit against sureties.”

And Chancellor Walworth, in Cuddebach v. Kent (5 Paige, 92), said: “The prosecution of a suit against him alone in the first instance would, therefore, be worse than useless as respects the sureties, and would subject them to the expenses of a double litigation.”

The upshot of the authorities seems to be that the court will require an accounting by the guardian where that will be necessary or availing to establish the extent of the sureties’ liability and is practicable to be- had; but where it is a proceeding of no use or advantage to the sureties, and can only result in subjecting them to the burthen of a double litigation, it will not be required. This is equivalent to holding that the conditions of the bond are independent and divisible, and may be so treated in the class of cases referred to.

We think, therefore, as there seems to be no substantial reason why the amount of the verdict is not correct, judgment should be ordered for the plaintiff on the verdict.

Daniels and Brady, JJ., concur.  