
    WEED v. PAINE.
    N. Y. Supreme Court, First Department, First District; General Term,
    October, 1883.
    Action fob Partition.—Extra allowances.—Code of Civil Pbocedube.—General Rules of court.
    In an action for the partition of real property the court has power and authority, independently of the Code of Civil Procedure, to award reasonable compensation to a guardian ad litem, for the services he iias performed. This authority has not been derived from and is not included within the provisions of the Code of Civil Procedure, relating to additional extra allowances.
    
      In a proper action allowances may now be made both to the plaintifís and to the defendants, provided they shall not exceed two thousand dollars on a side, or four thousand dollars in the aggregate. The language of the Code of Civil Procedure is now reasonably plain, and free from ambiguity on this point.
    Sections 3353, 3354, of the Code of Civil Procedure, relating to additional allowances, and General Rule of Court No. 50, considered and construed.
    This was an appeal in an action for the partition of a large amount of real property from an order, respecting allowances in addition to costs. Plaintiffs and defendants, including the guardian ad litem, appealed from an order which was based on a memorandum of the justice sitting at special term, which was as follows :—“As I construe section 3254 of Code of Civil Procedure, I have no power to allow more than $2,000 in the aggregate to all the parties. As the allowances called for, amount to $6,200, exclusive of the allowances to the plaintiff, which allowance is not specified in figures, it is obvious that the court cannot comply with the requests of the respective attorneys. $800 will be allowed to the plaintiff; $500 to the defendants Swift, Smith and children ; $400 to the defendants N. C. Paine and others; $200 to Hanford Smith, &c., and $100 to Mr. Jones, the guardian ad litem.
    
    
      Elial F. Hall, for appellants.
    I. Section 3254 Code Civ. Pro. is a re-enactment made in 1876 of section 309 of the old Code (see Mr. Throop’s note to section 3253, and Mr. Abbott’s note to Noyes v. Children’s Aid Society, 3 Abb. N. C. 36 ; Bockes v. Hathorn, 17 Hun, 87; Betts v. Betts, 4 Abb. N. C. 433).
    II. It was error to refuse additional compensation to the guardian ad litem, because of want of power under the Code. The power is independent of the Code (McCue v. O’Hara, 5 Redf. 336). Rules 50 and 51 are substantially Rules 143 and 147 of the Rules in Chancery, 1829,1837, and 1844 (see Professor Dwight’s brief in Thomson v. Thomson, at special term of this supreme court in 1877). Whenever a suit is instituted in equity relative to the property of an infant, he is a ward of court, and if the court cannot compensate the guardian ad litem, it ought not to appoint guardians (Story’s Eq. Jur., § 1352). The power of the court is inherent to reward persons acting in autre droit, as executors, guardians, etc. (Downing v. Marshall, 37 N. Y. 380; Wetmore v. Parker, 52 N. Y. 450; Clark v. Bininger, 75 N. Y. 344 ; 1 Abb. N. C. 421; In re Attorney General v. North American Life Ins. Co., 91 N. Y. 61; Ward v. James, 3 Hun, 526).
    III. The order is appealable as it limited the allowances, not on account of discretion, but for want of power (Hanover Ins. Co. v. Tomlinson, 58 N. Y. 215 ; Tilton v. Beecher, 59 N. Y. 176).
   Daniels, J.

The action was for the jiartition of real estate owned by Hanford Smith in his life-time, and upon its final determination an additional allowance of costs to the extent of $2,000 was made and distributed between the parties to the action, including the compensation to the guardian ad litem.

The court declined to increase the aggregate amount of the allowance upon the supposition that it could in .no event exceed the sum of $2,000, and that the guardian’s compensation should be included within that sum.

The compensation made to a guardian ad litem in equitable actions was not, however, dependent upon this or any similar provision of the Code ; for before its enactment it was the practice of the court of chancery to compensate the guardian for the services performed by him in the protection of the infant’s interests, by allowing him to recover costs not exceeding the taxable items prescribed for the services performed (Union Ins. Co. v. Van Rensselaer, 4 Paige, 85, 87 ; Gott v. Cook, 7 id. 523, 544).

And under this inherent and well established authority of the court, the rule has been prescribed and followed, of awarding to the guardian, to be paid out of the subject matter of the action, such a compensation as appears to be reasonable for the services he in fact performed ; and rule 50 of the present rules of all the courts of record of the State in express language embodies the continued application of the same principle. The authority has not been derived from, and is not included within the provisions of the Code relating to additional allowances, and for that reason the compensation to be made to the guardian ad litem should be considered as independent of, and forming no part of, the amount mentioned in the Code.

By the language of section 3253 of the Code the. most general authority is given to the courts to make additional allowances by way of costs in actions for the partition of real property. And this general language is subjected to no other restriction than that contained in the succeeding section, and that restriction is, that all the sums awarded to the plaintiff, or to a party or two, or more parties, on the same side, cannot exceed in the aggregate $2,000.- The ordinary effect of this section would be to limit the allowances in an action to this sum of $2,000. For the cases are not common in which each of the adverse parties to the action may become entitled to costs, and when they are not, the allowance must necessarily be confined to the successful party. -But when parties who maybe adversely related to the action are each successful, and for that reason become entitled to costs, there this restraint can have no application. For it-"has been expressly confined to the party or parties on the same side in the action, and by that phraseology it must have been intended to include only the party or parties sustaining the same relation to the controversy, either as plaintiff or defendant. The language cannot consistently be construed so as to give it any greater legal significance.

When, therefore, the parties on each side of the action may prove to be successful, and on that account each entitled to recover costs separately, this provision does not stand in the way of the court in the exercise of the preceding general authority in its power over this subject of allowances farther than they shall not exceed $2,000 to the parties on each side of the action. It does not, in other words, prevent the court from exercising the same authority in behalf of the parties on each side of the litigation, so that an allowance may now be made in a proper case to the plaintiff or plaintiffs in an action, and also to the defendant or defendants, provided that they shall not exceed $2,000 on a side, or $4,000 in the aggregate.

In determining this point it becomes necessary to recur to the provisions contained in the preceding Code. For the language which has been now employed to express the legislative intention is reasonably plain and free from ambiguity, and it supports this and no other fair construction.

Whether an action for the partition of real estate may be included within this authority to the extent of permitting an allowance to the parties on each side is not a matter now requiring to be determined. If actual partition of the property is not made, that may be the subject of serious doubt (Code, § 1559). While, if the sale of the property is made, then the right would seem to be reasonably free from doubt (Code, § 1579). But as the right to the allowances was not considered when the order was made, but only the extent of the authority of the court over the subject, this doubt is not required to be solved on this occasion. All that can now be determined is that the provisions relating to allowances do not limit them to the sum of $2,000 when they may be made to one or more plaintiffs, and also one or more defendants in the action.

The order should be reversed, but without costs. 
      
       I respectfully submit that this doubt is not -well founded. Section 1559 is the same as section 72 of the title of the Revised Statutes, on Partition, and it was the practice under the Revised Statutes, in cases of actual partition, to give costs to the defendants as well as the plaintiffs, as is shown by the case of Tibbits v. Tibbits, 7 Paige, 204, decided by Chancellor Walworth in 1838. The head-note is as follows:
      “In partition suits where an actual partition of the premises is decreed, the costs of the complainant, and of all the defendants who have appeared in the cause, are to be taxed as between party and party, and the aggregate amount of the several bills apportioned and charged upon the parties to the suit, according to their respective rights and interests in the premises; and'the parties whose taxed bills exceed their ratable proportions of the whole costs are entitled to execution against those whose taxed bills are less.”
      The form of the decree, as to the costs of the guardians ad litem of infants, in partition suits, where an actual partition is decreed is given.
     