Appellant appealed from an order of the Court of Chancery denying its motion to strike a counter-claim filed on behalf of an infant defendant by his guardian ad litem, the appeal having been taken in good faith prior to a decision of this court on another phase of the case involving precisely the same issues. Appellant moves for leave to abandon its appeal. Held, the guardian ad litem is not entitled to costs and counsel fees. Leave to abandon appeal granted.
PER CURIAM.
The Court of Chancery denied a motion to strike the complainant's bill. We affirmed this denial in Brown v. Fidelity Union Trust Co., 128 N.J. Eq. 197. It also denied a motion to strike a counter-claim filed in behalf of an infant defendant by his guardian ad litem. The appeal from this order is presented in this case. The issues in both matters are precisely the same. It is conceded that in this case we would follow our previous decision. The appellant desires to abandon its appeal, and there would be no objection by the guardian al litem to this course if his costs were paid and a counsel fee. He is not entitled to a counsel fee in this cause. Nobile v. Bartletta, 112 N.J. Eq. 304. The appeal having been taken in good faith before our decision in Brown v. Fidelity Union Trust Co., supra, we do not think costs should be taxed.
The motion that appellant may have leave to abandon its appeal will be granted.
For the allowance of costs — THE CHIEF-JUSTICE, PARKER, HEHER, WOLFSKEIL, HAGUE, JJ. 5.
For the disallowance of costs — CASE, BODINE, DONGES, PERSKIE, PORTER, DEAR, RAFFERTY, JJ. 7.