#### Carr *v.*Huff *et al.*

*(Supreme Court, General Term, Fifth Department.*

June 20, 1890.)

Guardian and Ward—Action in Name oe Guardian.

Where an action is brought by a general guardian in his own name, as guardian for the infant named, and the recovery was for the infant’s sole benefit, she is es-topped, on coming of age, from suing on the same cause of action, though under Code Civil Proc. N. Y. §§ 468, 469, and 1686, the better practice requires the action to be brought in the infant’s name by a guardian *ad litem.*

Appeal from special term, Monroe county. '

Suit by Louisa Carr against David C. Huff and others. The court below dismissed the complaint, from which plaintiff appealed;

Argued before Dwight, P. J., and Macomber and Coblett, JJ.

*George D. Forsyth,*for appellant. Z>. *B. Beach*and *Arthur FI. Sutherland,*for respondents.

Macomber, J.

The plaintiff, having attained her majority on the 23d day of April, 1889, brought this action to charge certain lands, particularly described in the complaint, with the payment of a legacy of $2,000 given to her by the will of her father, William G. Huff, who died in the town of Gates, Monroe county, N. Y., January 14, 1879, leaving'a last will and testament bearing date three days before his death, and which was subsequently duly probated in the surrogate’s court of Monroe county. By this will the plaintiff was bequeathed the sum of $2,000, and the defendant David C. Huff was appointed not only the executor thereof, but also the testamentary guardian of the plaintiff. The testator died seised in fee of 3 acres of land in Gates, an undivided ninth part of 54 acres, an undivided one-half of 3J acres, and an undivided one-half of a 6-acre parcel in the town of Chili. In the month of January, 1880, the defendant David C. Huff brought an action in the court individually, and as executor, and also as testamentary guardian of this plaintiff, .for the purpose, among other things, of charging the lien of the plaintiff’s legacy upon the real estate of the testator, and procuring a sale of the lands owned by him at the time of his death. This resulted in a judgment, in December of that year, adjudging that this plaintiff had a lien upon the real es-*362tote for the payment of such legacy, and directing a sale thereof; upon which sale, which was thereafter' had, the net sum of $1,023.51 was realized, applicable to the payment of such legacy, and was put into a mortgage of the purchaser of a portion of the premises, with directions by the court that it be deposited with the surrogate of Monroe county to await the coming of age of this plaintiff.

The case is silent as to what has been done with the income of this security from 1880 until the beginning of this action. There is nothing, however, to show that the plaintiff has, since she attained her majority, estopped herself from making the claim now set up by her in this action by having received the proceeds of such sale so procured in the action of David C. Huff. Unless, therefore, she is bound by the judgment procured in the suit of David G. Huff, instituted in her behalf by him, as testamentary guardian, her right to recover, in whole or in part, in this action is indisputable. Very little need be said in touching the three acres of land in the town of Gates above mentioned, because whatever claim the plaintiff may have had therein was entirely extinguished by the foreclosure of the Crittenden mortgage, in which action this plaintiff was made a party, and was properly represented therein by a guardian *ad litem,*duly appointed. In respect to the other lands mentioned in the complaint, the plaintiff’s rights have not been foreclosed, except as above mentioned, by the action of David C. Huff. The argument of counsel for the appellant is that the action of David C. Huff, although he was the testamentary guardian of this plaintiff, was not a bar to the maintenance of this action, for the reason that the plaintiff herein was not represented in such action by a guardian *ad litem*or otherwise than by David 0. Huff, the testamentary guardian. Inasmuch as the action of David 0. Huff, which resulted in the above-mentioned judgment, was, in reality, for the benefit of this plaintiff, the objection so made by the counsel for the appellant is technical, and therefore unavailing, unless there is some positive statute which renders the judgment so taken in the year 1880 nugatory. The title of that action was as follows: “David C. Huff, and David O. Huff as executor of the last will and testament of William G. Huff, deceased, and as testamentary guardian of Louisa Huff, a minor, plaintiff, against Ferdinand Huff and others. ” The recovery therein was solely for the benefit of this plaintiff.

The general rule now is, undoubtedly, that, where an infant has a right of action, he is entitled to maintain suit thereon immediately, without delay on account of infancy; and that, before such action is brought, a competent and responsible person must be appointed and appear as guardian, for the purposes of the action, of such infant. Sections 468, 469, 1686, Code Civil Proc. In the case of *Perkins*v. *Stimmel,*114 N. Y. 359, 21 N. E. Rep. 729, while it is stated that the theory of the Code is that all actions for an infant should be brought in his own name by a guardian *ad litem,*yet such had not been a fixed and unalterable rule, so as to render null actions brought by a testamentary guardian designed solely for the benefit of the infant, and where it was apparent that the same was brought directly in the interest of such infant. In the same case, at general term, (42 Hun, 520,) it was held that the action was properly brought, but permission was given tp change the same so as to make it distinctly in the name of the infant. In the case of *Coakley*v. *Mahar,*36 Hun, 157, it was held that an action brought by the plaintiff, as general guardian of one Sarah Mahar, to recover one-lialf of the rent of the premises owned by the infant and the defendant in that action, as tenants in common, was authorized and properly brought in the name of the general guardian of the infant. The same principle is in a negative way recognized by the cases of *Segelken*v. *Meyer,*14 Hun, 593, and in the same case on appeal, (94 N. *Y.*473,) where it was held that an action to recover money or personal prop, erty belonging to an infant may be brought in the name of the infant by his guardian *ad litem,*although he has a general guardian.

*363On the whole, while we agree that the better practice is at present to bring an action designed for the protection or the recovery of an infant’s property in the name of the infant, represented by a guardian appointed for the purposes of the action in hand, yet an action brought by the general guardian where, by the title and the averments in the complaint, it is plain to see that the same is solely in behalf of the infant, and where the recovery is for his benefit, is, in the absence of fraud or collusion, binding upon the infant. By the statute,' 2 Eev. St. p. 150, § 3, the guardian is required to take the custody and management of the personal estate of the minor, together with the profits of his real estate, and is authorized to bring such action in relation thereto as guardian in socage might by law. We perceive in the provisions of the €ode no language which works a repeal of this statute, and consequently the same must be deemed in force, although, as above stated, under the general scope and purpose of the Code of Civil Procedure, an infant should be represented by a person specially designated by the court or judge to take care of his interests in each particular action. The judgment appealed from should be affirmed, with costs. All concur.