Opinion
December 22, 1970
Order, Supreme Court, New York County, entered on March 16, 1970, unanimously modified on the law and on the facts, and in the exercise of discretion, to strike the sixth decretal paragraph thereof, and the order is otherwise affirmed, without costs and without disbursements. The matter of the necessity or propriety of the appointment of a guardian ad litem or special guardian for an infant should ordinarily await the proper application by persons entitled to move for such appointment and the designation should then be made only after due consideration of any proper recommendation for the appointment. In the absence of a showing that the infant's interests are presently in danger, a proper following of such procedure precludes the reservation by a particular justice of exclusive jurisdiction, on behalf of the court, to consider and act upon such application when and if made in the future. (See Matter of Beyer, 21 A.D.2d 152; Matter of Thoms, 33 A.D.2d 990, app. dsmd. 26 N.Y.2d 963; Matter of Legget, 25 A.D.2d 727.) Under the circumstances, in the modification and amendment of the judgment of separation in this action, it was an improvident exercise of discretion for Special Term to provide "that should the Defendant need to invade the principal of the trusts [in which the infant was interested] in order to pay either his own maintenance or the maintenance of his wife and child, he will make appropriate application upon notice to a special guardian for the infant who will be approved by this Court, for which purpose the undersigned Justice reserves jurisdiction in the matter". (Incidentally, see Trippe v. Trippe, 19 N.Y.2d 944, modfg. 26 A.D.2d 916, involving same parties and the matter of support of this infant.)
Concur — Stevens, P.J., Eager, Nunez, McNally and Tilzer, JJ.