#### W. Emlen Roosevelt et al., Plaintiffs, *v.*Amos Cotting Schermerhorn et al., Defendants.

(Supreme Court, New York Special Term,

July, 1900.)

Costs — When guardian ad litem is entitled to costs under general answer of infant.

Where the interposition of the general answer of an infant defendant makes it necessary for the plaintiff to prove his case, the guardian. *ad litem*of the infant is entitled to a trial fee and costs after notice of trial.

The general answer of an infant is practically equivalent to a denial of knowledge or information sufficient to form a belief, and it raises an issue.

Motion for a retaxation of costs.

Latham G. Reed, guardian ad litem, for motion.

George C. Kobbe, opposed.

Bischoff, J.

As heretofore held by me (Dean v. Booth, N. Y. L. J., July 7, 1900, Special Term, Part I), this motion for a retaxation should be granted upon the ground that the general answer of an infant suffices to raise an issue of fact sufficient for the purposes of taxation of a trial fee and costs after notice of trial where the answer necessitated the plaintiff’s proof of his-cause of action.

*288The definition of issues as found in sections 963 and 964 of the Code, is confined to issues arising on the pleadings and for -the purposes of the chapter of the Code relating to the method of trial. § 963. Provisions of a like nature contained in the earlier Code were held not to control over the accepted definition of a trial, for the purposes of an award of costs depending upon the trial (Place v. Butternut, etc., Co., 28 How. Pr. 184), and there can be no doubt that the general answer of an infant, calls for the plaintiff’s proof, and for a judicial determination of the facts according to the accepted'practice. It may be noted that the forms of denial recognized by section 964 of the Code are not exclusive, since a denial, “ upon information and belief,” not expressly included in that section, raises an issue (Bennett v. Leeds Man. Co., 110 N. Y. 150), and in parity with the reasoning employed in the case cited, there is nothing violent in the construction that the infant’s general answer, which is recognized by the Code (§ 523), is substantially within the definition of a denial of *“*knowledge or information sufficient to form a belief.” Code, § 964.

Certainly, in the case before me, an issue of fact was recognized, for the action was referred to a referee to hear and determine (§ 1013), and, yet, no issue was raised, unless by the infant’s answer, since there was no other.

There is no policy of the law which should exclude the guardian of an infant from the award of costs, and I find nothing in the statute which necessarily renders a trial upon questions presented by an infant’s general answer, different from any other trial with respect to the question of costs.

I have been referred to a decision at Special Term, where, after the interposition of an infant’s answer, the court held that was no issue, but this case was one where a reference was had under section 1619 of the Code, in an action for dower; there being no trial, and the reference being had with regard to a question upon which the court was bound to pass, whether an answer was served ,-on behalf of the infant or not, and which did not relate to any issue in the case. This authority is not in point, and another and later decision founded upon it is of no greater pertinence to the present question.

I conclude that the motion should be granted in all respects.

Motion granted.