New York County NyArchives Court.....Miller, Samuel Vs. Richard Woodhead 1889
************************************************
Copyright.  All rights reserved.
http://www.usgwarchives.net/copyright.htm
http://www.usgwarchives.net/ny/nyfiles.htm
************************************************
File contributed for use in USGenWeb Archives by:
Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 June 2, 2008, 8:46 am

Source: Reports Of Cases - New York
Written: 1889

First Department, March Term, 1889.

SAMUEL L. MILLER, an Infant, by WILLIAM C. TOWEN, His Guardian ad litem, 
Plaintiff, v. RICHARD WOODHEAD, Defendant.

Execution against the person of a guardian ad litem — when proper.

Where, in an action brought on behalf of an infant to recover damages for an 
injury alleged to have been sustained in consequence of the negligence of the 
defendant, judgment is entered dismissing the complaint, and an execution has 
been issued against the property of the guardian and returned unsatisfied, an 
execution may be properly issued against the person of the guardian for the 
collection of the costs recovered by the defendant in such action without any 
application being made to the court for leave to issue it.

Appeal by Hobart Oakley, the assignee of Richard Woodhead, the above-named 
defendant (in whose favor judgment was entered in the above-entitled action, 
dismissing the complaint, after a trial at a Circuit Court in the county of New 
York on the 3d day of October, 1887), from an order made at a Special Term of 
the Supreme Court, and entered on the 9th day of November, 1888, in the office 
of the clerk of the county of New York, denying, with costs, the motion made by 
said Hobart Oakley for an order granting to him execution against the person of 
William C. Towen, guardian ad litem in the above-entitled action.

Henry P. Starbuck, for Hobart Oakley, as assignee, appellant.

John Gray Boyd, for guardian ad litem, respondent.

Daniels, J.:

This action was brought by the plaintiff, who was an infant of about the age of 
three years, to recover damages for an injury alleged to have been sustained by 
himself in consequence of the negligence of the defendant. It was tried at the 
Circuit, and a verdict recovered in his favor. The judgment upon the verdict was 
affirmed at the General Term, but reversed at the Court of Appeals. (Miller v. 
Woodhead, 101 N. Y., 471.) The effect of the reversal was to defeat the 
plaintiff's action, and judgment was finally obtained dismissing the complaint 
and for the recovery of the sum of $756.41 costs.

An execution was issued in the action against the property of the guardian and 
returned unsatisfied. A motion was thereupon made on behalf of the defendant for 
leave to issue an execution against the person of William C. Towen, who was the 
guardian ad litem of the plaintiff. After the argument, and before the decision 
of the motion, the defendant died, and it was ordered to abate, unless it should 
be continued by the proper parties within six months from the date of the entry 
of the order. An administratrix of the estate was appointed by the surrogate of 
the county of New York on the 8th of June, 1888, within the six months mentioned 
in the order, but, as she did not make herself a party to the proceeding, the 
motion finally abated. She, however, assigned the judgment to Hobart Oakley, who 
is the appellant, and he afterwards applied for leave to issue an execution 
against the person of the guardian, and the motion made in his behalf was denied 
by the court, and from the order entered upon the decision he has taken this 
appeal. The final abatement of the motion made in behalf of the defendant in the 
action presented no legal objection to the success of the application made on 
behalf of the assignee. It decided nothing, but simply terminated the proceeding 
on the motion, without any decision whatever as to the right of the defendant to 
the execution against the person of the guardian. It was, therefore, no answer 
to the application made on behalf of this assignee.

The action was brought for a wrong, upon which, if the plaintiff had recovered, 
an execution against the person of the defendant might have been issued. (Code 
of Civil Pro., § 1487.) And as the plaintiff failed to recover finally in the 
action, the defendant was entitled to an execution of this description for the 
collection of the costs recovered by him. The Code, by section 1376, has further 
provided that, "where the party recovering a final judgment has died, execution 
may be issued at any time within five years after the entry of the judgment, by 
his personal representatives, or by the assignee of the judgment, if it has been 
assigned, and the execution must be indorsed with the name and residence of the 
person issuing the same."

The final judgment in the action was recovered on the 15th of November, 1887, 
and this section accordingly secured the right to issue an execution for its 
collection at the time when the application for leave to issue it was finally 
decided. When the action has been brought, as this was, in the name of an infant 
plaintiff, the Code, by section 469, has declared that his guardian shall be 
responsible for the costs thereof. This is an absolute and unqualified 
liability, and, by section 3249 of the Code of Civil Procedure, it has been 
further declared, "where costs are awarded against an infant plaintiff they may 
be collected by execution or otherwise, from his guardian ad litem, in like 
manner as if the latter was the plaintiff." This was a modification, as well as 
an amelioration, of the preceding law; for, by section 316 of the Code of 
Procedure, it was declared that, "when costs are adjudged against an infant 
plaintiff the guardian by whom he appeared in the action shall be responsible 
therefor and payment thereof may be enforced by attachment;" and such an 
attachment, when issued by leave of the court, was enforceable against the 
person of the guardian. Prior to that enactment the remedy was still more 
rigorous; for the attachment issued as a process to punish the guardian for 
nonpayment as a contempt. (Wice v. Com. Fire Ins. Co., 8 Daly, 70; Grantman v. 
Thrall, 31 How., 464.) The last change which has, in this manner, been effected 
by the Code of Civil Procedure has relieved the guardian of some of the severity 
of the preceding practice, for it has rendered him liable to an execution 
against his person in the same manner, only, as though he were the plaintiff in 
the action; and this execution, by section 1376, may be issued in a case where 
the judgment-creditor is deceased, either by his personal representatives or by 
the assignee of the judgment when it has been assigned. The right to the 
execution is absolute and unqualified. And it has been further provided by 
section 1375 of the same Code that a party recovering a final judgment, or his 
assignee, may have execution thereupon, of course, at any time within five years 
after the entry of the judgment, except where it may otherwise be specially 
provided for by law, and no other provision of law applicable to this case has 
been cited or discovered. Under these sections of the Code of Civil Procedure, 
therefore, the assignee became vested, by virtue of his assignment, with the 
unqualified right to issue an execution against the person of the guardian, for 
the collection of these costs. That right has been in no way made dependent upon 
any leave or liberty of the court, as the right to the attachment for the same 
object previously was.

No interposition of the court, either expressly or by any implication, has been 
declared a prerequisite to the right to the execution. But it may be issued "of 
course" within five years after the entry of the judgment, and the right to so 
issue it has been vested in the personal representative or the assignee after 
the decease of the judgment-creditor. There was, accordingly, no necessity 
whatever for either of the motions which were made, and as the right to issue 
the execution has been absolutely provided for in this manner, it could not be 
abridged or taken away by the decision made on the determination of either of 
the motions. What should have been done on the final application was to have 
dismissed it as entirely needless. In that respect the order should be modified, 
directing the dismissal of the motion as unnecessary and as so modified 
affirmed, without costs to either party.

Van Brunt, P. J., and Brady, J., concurred.

Order as modified affirmed, without costs to either party.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

File at: http://files.usgwarchives.net/ny/newyork/court/miller721gwl.txt
This file has been created by a form at http://www.genrecords.org/nyfiles/

File size: 8.9 Kb