Opinion
April 23, 1909.
Vine H. Smith, for the appellants.
James C. Church, for the respondent.
This action was brought for the construction of a will. The court declined to assume jurisdiction on the ground that the surrogate had jurisdiction to determine all the questions presented. The allowance to the guardian ad litem, payable out of the estate, was made as compensation and not pursuant to section 3253 of the Code of Civil Procedure; and the learned counsel for the respondent expressly disclaims in his brief any attempt to sustain the allowance as one made pursuant to said section of the Code.
We are constrained to reverse that part of the judgment appealed from on the ground that the court had no power to make the allowance payable out of the estate. The only case cited by the respondent to sustain the judgment is Weed v. Paine (31 Hun, 10); but, as has many times been pointed out, that case involved only the power to make an allowance of taxable costs, including the additional allowances authorized by section 3253 of the Code of Civil Procedure. The law seems to be settled in this State by a long line of decisions that the court has no power to award a guardian ad litem compensation, payable out of the estate, beyond the taxable costs, including additional allowances authorized by the statute; that any additional compensation must be made payable out of the interest of the infant, and that, where it turns out that the infant has no interest in the subject-matter of the litigation, the guardian has to be content with the statutory costs and allowances. ( Union Ins. Co. v. Van Rensselaer, 4 Paige, 84; Gott v. Cook, 7 id. 521, 544; Doremus v. Crosby, 66 Hun, 125; Downing v. Marshall, 37 N.Y. 380; Matter of Robinson, No. 2, 40 App. Div. 30; affd., 160 N.Y. 448; Matter of Farmers' Loan Trust Co., 49 App. Div. 1; Brinckerhoff v. Farias, 52 id. 256; Illensworth v. Illensworth, 110 id. 399; Matter of Holden, 126 N.Y. 589; Matter of Pitney, 186 id. 540.) Those decisions were made in accounting proceedings in the Surrogate's Court and in Supreme Court actions for the construction of wills, for executors or trustees' accounting, for mortgage foreclosure and for partition of real property. The result of them is thus summed up by Mr. Justice CULLEN, speaking for this court in this department, in Matter of Robinson ( supra); "We think the Holden case is authority for the general proposition that no allowances can be made for counsel in a litigation beyond taxable costs (which would include any extra allowance authorized by sections 3252 and 3253 of the Code of Civil Procedure), except in the case of trustees who represent the fund, or of one who has recovered the fund for the benefit of himself and others." Of course, the power to allow the guardian ad litem compensation, payable out of the interest of the infant, is undoubted, and we do not decide whether an additional allowance, under section 3253 of the Code, was justified.
The judgment, so far as appealed from, should be reversed, and the case remitted to the Special Term.
HIRSCHBERG, P.J., GAYNOR, BURR and RICH, JJ., concurred.
Judgment in so far as appealed from reversed, without costs, and case remitted to the Special Term.