116. Guardian; how appointed.

The guardian shall be appointed as follows:

1. When the infant is plaintiff, upon the application of the infant, if he be of the age of fourteen years; or, if under that age, upon the application of his general or testamentary guardian, if he has any, or of a relative or friend of the infant. If mad, by a relative or friend of the infant, notice thereof must first be given to such guardian, if he has one; if he has none, then to the person with whom such infant resides.

2. When the infant is defendant, upon the application of the infant, if he be of the age of fourteen years, and apply within twenty days after service of the summons. If he be under the age of fourteen, or neglect so to apply, then upon the application of any other party to the action, or of a relative or friend of the infant, after notice of such application being first given to the general or testamentary guardian of such infant, if he has one within this state; if he has none, then to the infant himself, if over fourteen years of age, and within the state; or, if under that age, and within the state, to the person with whom such infant resides. And in actions for the partition of real property, or for the foreclosure of a mortgage or other instrument, when an infant defendant resides out of this state, or is temporarily absent therefrom, the plaintiff may apply to the court in which the action is pending, at any special term thereof, and will be entitled to an order designating some suitable person to be the guardian for the infant defendant, for the purposes of the action, unless the infant defendant, or some one in his behalf, within a number of days after the service of a copy of the order, which number of days shall be in the said order specified, shall procure to be appointed a guardian for the said infant, and the court shall give special directions in the order for the manner of the

And in case

service thereof, which may be upon the infant. the infant. an infant defendant having an interest in the event of the action shall reside in any state with which there shall not be a regular communication by mail, on such fact satisfactorily appearing to the court, the court may appoint a guardian ad litem for such absent infant party, for the purpose of protecting the right of such infant in said action; and on such guardian ad litem, process, pleadings and notices in the action may be served in the like manner as upon a party residing in this state.

1. Question. Has this section been amended since its passage in 1848.

Answer. It has, in 1851, 1852, 1862, 1863 and 1865, which last amendment reads as above.

2. Q. How did this section read in 1848, 1851, 1852, 1862 and 1863?

A. As follows:

$96. [1848.] The guardian shall be appointed as follows: 1. When the infant is plaintiff, upon the petition of the infant, if he be of the age of fourteen years; or, if under that age, upon the petition of some other party to the suit, or of a relative or friend of the infant.

2. When the infant is defendant, upon the petition of the infant, if he be of the age of fourteen years, and apply within twenty days after the service of the summons. If he be under the age of fourteen, or neglect so to apply, then upon the petition of any other party to the action, or of a relative or friend of the infant.

§ 116. [1851.] The guardian shall be appointed as follows: 1. When the infant is plaintiff, upon the application of the infant, if he be of the age of fourteen years; or, if under that age, upon the application of his general or testamentary guardian, if he has any, or of a relative or friend of the infant. It made by a relative or friend of the infant, notice thereof must first be given to such guardian, if he has one; if he has none, then to the person with whom such infant resides.

2. When the infant is defendant, upon the application of the infant, if he be of the age of fourteen years, and apply within twenty days after the service of the summons. If he be under the age of fourteen, or neglect so to apply, then upon the application of any other party to the action, or of a relative

or friend of the infant, after notice of such application being first given to the general or testamentary guardian of such infant, if he has one; if he has none, then to the infant himself, if over fourteen years of age, or if under that age, to the person with whom such infant resides.

§ 116. [1852.] The guardian shall be appointed as follows: 1. When the infant is plaintiff, upon the application of the infant, if he be of the age of fourteen years, or if under that age, upon the application of his general or testamentary guardian, if he has any, or of a relative or friend of the infant. If made by a relative or friend of the infant, notice thereof must first be given to such guardian, if he has one; if he has none, then to the person with whom such infant resides.

2. When the infant is defendant, upon the application of the infant, if he be of the age of fourteen years, and apply within twenty days after service of the summons. If he be under the age of fourteen, or neglect so to apply, then upon the application of any other party to the action, or of a relative or friend of the infant, after notice of such application being first given to the general or testamentary guardian of such infant, if he has one within this state; if he has none, then to the infant himself, if over fourteen years of age, and within the state, or if under that age, and within the state, to the person with whom such infant resides.

§ 116. [1862.] The guardian shall be appointed as follows. 1. When the infant is plaintiff, upon the application of the infant, if he be of the age of fourteen years, or if under that age, upon the application of his general or testamentary guardian, if he has any, or of a relative or friend of the infant. If made by a relative or friend of the infant, notice thereof must first be given to such guardian, if he has one; if he has none, then to the person with whom such infant resides.

2. When the infant is defendant, upon the application of the infant, if he be of the age of fourteen years, and apply within twenty days after service of the summons. If he be under the age of fourteen, or neglect so to apply, then upon the application of any other party to the action, or of a relative or friend of the infant, after notice of such application being first given to the general or testamentary guardian of such infant, if he has one within this state; if he has none, then to the infant himself, if over fourteen years of age and within the state, or if under that age, and within the state, to the person with

whom such infant resides. And in actions for the partition of real property, or for the foreclosure of a mortgage or other instrument, when an infant defendant resides out of this state, the plaintiff may apply to the court in which the action is pending, at any special term thereof, and will be entitled to an order designating some suitable person to be the guardian for the infant defendant, for the purposes of the action, unless the infant defendant, or some one in his behalf, within a number of days after the service of a copy of the order, which number of days shall be in the said order specified, shall procure to be appointed a guardian for the said infant, and the court shall give special directions in the order for the manner of the service thereof, which may be upon the infant himself, or by service upon any relation or person with whom the infant resides, and either by mail or personally upon the person so served,

§ 116. [1863.] The guardian shall be appointed as follows: 1. When the infant is plaintiff, upon the application of the infant, if he be of the age of fourteen years, or if under that age, upon the application of his general or testamentary guardian, if he has any, or of a relative or friend of the infant.. If made by a relative or friend of the infant, notice thereof must first be given to such guardian, if he has one; if he has none, then to the person with whom such infant resides.

2. When the infant is defendant, upon the application of the infant, if he be of the age of fourteen years, and apply within twenty days after service of the summons. If he be under the age of fourteen, or neglect so to apply, then upon the application of any other party to the action, or of a relative or friend of the infant, after notice of such application being first given to the general or testamentary guardian of such infant, if he has one within this state; if he has none, then to the infant himself, if over fourteen years of age and within the state, or if under that age, and within the state, to the person with whom such infant resides. And in actions for the partition of real property, or for the foreclosure of a mortgage or other instrument, when an infant defendant resides out of this state, the plaintiff may apply to the court in which the action is pending, at any special term thereof, and will be entitled to an order designating some suitable person to be the guardian for the infant defendant, for the purposes of the action, unless the infant defendant, or some one in his behalf, within a number of days after the service of a copy of the order. which number of days

$116.]

PARTIES BY GUARDIAN.

shall be in the said order specified, shall procure to be appointed a guardian for the said infant, and the court shall give special directions in the order for the manner of the service thereof, which may be upon the infant himself, or by service upon any relation or person with whom the infant resides, and either by mail or personally upon the And in case an infant defendant, havperson so served. ing an interest in the event of the action, shall reside in any state with which there shall not be a regular communication by mail, on such fact satisfactorily appearing to the court, the court may appoint a guardian ad litem for such absent infant party, for the purpose of protecting the right of such infant in said action, and on such guardian ad litem, process, pleadings and notices in the action may be served in the like manner as upon a party residing in this state.

Questions.

3. Q. When and how should a guardian be appointed for an infant plaintiff? 4. Q. When and how should a guardian be appointed for an infant defendant?

5. Q. When does a surrogate acquire jurisdiction to appoint a general or testamentary guardian of an infant?

6. Q. How is the appointment of a guardian ad litem for an infant, in actions for partition, to be regulated and made?

7. Q. When and how is the appointment of guardians ad litem for infant parties to be made in the district (justices') courts of the city of New York?

8. Q. What power has a guardian ad litem in reference to the settlement of actions?

3. Q. When and how should a guardian be appoinled for an infant plaintiff?

A. In Hill agt. Thacter, 3 How., 407, Special Term, December, 1848, WILLARD, J., it was decided, that the Code has not abrogated the former practice requiring the appointment of a guardian for an infant plaintiff, before the issuing of the summons and complaint. And where such guardian was not appointed until the day of service of the summons and complaint, which were dated and sworn to one day previous, the summons was irregular. In Halbert agt. Newell, 4 How., 93, Special Term, July, 1849, JOHNSON, J., it was decided, that in actions brought by infants, a guardian is not necessary, nor is he liable for costs only in cases where the infant is sole plaintiff. A suit must be commenced in the name of an infant, sole plaintiff, to entitle the defendant to security for costs.

In Towner agt. Towner, 7 How., 387, Special Term, January, 1853, HAND, J., it was decided, that if a feme covert plaintiff is not an infant, or lunatic, &c., no order for leave to sue by guardian or for appointment of guardian is necessary.

In Hoftailing agt. Teal, 11 How., 188, Special Term, March, 1855, HARRIS, J., it was decided, that before the Code, an infant plaintiff sued by a next friend, and an infant defendant appeared by guardian; but the Code now requires a guardian in both cases. And although the change may be in name merely, it is irregular for an infant plaintiff to sue by a next friend, instead of a guardian.

In Cook agt. Rawdon, 6 Hor., 233, Special Term, October, 1853, HAND, J., it was decided, that a guardian of an infant plaintiff should be a responsible person, for he is liable for costs. A guardian for an infant wife, who joins with her husband as plaintiff, is not necessary. It seems, that part of rule 60 of the supreme court which requires the guardian ad litem to be the general guardian, or an attorney, &c., or other officer of the court, does not apply to a guardian for the plaintiff.

In Grantman agt. Thrall, 29 How., 344, General Term, March, 1865, E. DARWIN