Buermann v. New York Produce Exchange

O’GORMAN, J.

This action is brought by the general guardians of infants, to assert their claim against the New York Produce Exchange for $5,000, which became due and payable by that association to the widow and next of kin of August Buermann, deceased, and against Eva Buermann, the widow, who’ demurs on the ground, among others, that the general guardians-had no right or power to sue in their own names to recover this-property belonging to the infants, and that suit could only be-properly brought by a guardian ad litem.

The question raised by this demurrer has not been altogether-free from doubt

In Segelken agt. Meyer (94 N. Y., 47), the court say, that it does not appear to have ever been decided by that court It *400held, however, that that action was well brought in the name of the guardian ad litem. \

The Code of Civil Procedure, which in sections 469, 470 and 476, requires that before a summons is issued in the name of an infant plaintiff, a competent person must be appointed to act as his guardian ad litem, and provides, also, that the general guardian may be appointed as guardian ad litem, sufficiently expresses the intent of the law as it now is, viz.: That by the intervention' of that officer alone, an action on behalf of an infant can be brought, at least, in cases where the assertion of the infant’s claim to recover personal property is concerned.

The case of Cagger agt. Lansing (64 N. Y., 418), was decided before the adoption of the Code of Civil Procedure now in force. It was an action brought by the general guardian of infants to recover real estate, and it was held that their rights in such an action were enforcible by their mother as guardian in socage (Id., 426).

The case at bar is concerned with the assertion of the claim .of the infants, not to real estate, as to which alone a guardian in .socage could have represented them in an action, but only to personalty, and the case last cited throws, therefore, no light .on the present inquiry.

In my opinion the necessity of clear and uniform practice ■ under the provisions of the Code of Civil Procedure above referred to, requires that the rule should be recognized, that in cases such as that at bar, the actions should always be brought in the name of a guardian ad litem, properly appointed, and that if brought in the name of the general guardian they are not well brought.

For these reasons this demurrer is sustained, with costs.