Callahan v. New York Central & Hudson River Railroad
90 N.Y.S. 657
N.Y. App. Div.
1904
Check Treatment
Chase, J.:

Thе courts are always ready to protect the person and property of infants and persons of unsound mind. When a person is incapable qf representing himself,_ either as a plaintiff or d.efqnd.ant in. an auction *59or special proceeding by reason of his infancy, it has long been the practice to allow a next friend or guardian to represent such person in such aсtion or proceeding, and the judgment or order obtained in an action or special proceeding so conducted is binding upon such infant. Notwithstanding the appointment of a next friend or guardian to represent such person, it remains the duty of the court to protect his interest. ' In this State it is expressly provided by statute that “ before a summons is issued in the name of an infant plaintiff a cоmpetent and responsible person must be appointed to appear as his guardian, for the purpose of the аction, who shall be responsible for the costs thereof * * *.” (Code Civ. Proc. § 469.) But the statute also expressly provides: “ Where an infant has a right of action he is entitled to maintain an action thereon, and the same shall not be deferred or delayed on аccount of his infancy.” (Code Civ. Proc. § 468.)

Even under our statute the omission to appoint a guardian ad litem for an infant plaintiff before bringing an action is not a jurisdictional ‍‌​​‌​​‌‌​‌‌​​‌​​‌​​‌​‌​‌‌‌‌‌​‌‌​‌‌‌​​‌​‌​‌‌‌​​‌​‍defect, but an irregularity that сan be corrected by an appointment nune pro tumo. (Rima v. Rossie Iron Works, 120 N. Y. 433. It has been held that an action may be maintained in the name of an infant although commenced without his knowledge or consent. (Fulton v. Rosevelt, 1 Paige, 178.)

In Hill v. Water Commissioners of Watkins (77 Hun, 491), where it appeared upon the trial that the guardian ad litem, as named, had not been duly appointed, an application was made by the counsel for the plaintiffs for the appointment of a guardian ad litem and for his substitution in the place of the person ‍‌​​‌​​‌‌​‌‌​​‌​​‌​​‌​‌​‌‌‌‌‌​‌‌​‌‌‌​​‌​‌​‌‌‌​​‌​‍who had сommenced the action as guardian ad litem and the application was granted and another person was appointed and the pleadings were amended in conformity with such appointment. The court say that such order was authorized under the rule laid down in Rima v. Rossie Iron Works (supra).

If Charles F. Callahan was injured, as stated in the complaint, through the negligence of the defendant, the commencement оf the action was clearly in his interest and for his benefit. It also appears from the record that at the time the action was commenced it was very desirable that there should not be. any further delay in. commencing the same..

*60When a person has been duly adjudged to be incompetent to care for his property, and a committee of his property has been duly apрointed and qualified, such committee ‍‌​​‌​​‌‌​‌‌​​‌​​‌​​‌​‌​‌‌‌‌‌​‌‌​‌‌‌​​‌​‌​‌‌‌​​‌​‍may maintain any action which the incompetent might have maintained if the appointment had not been made. The language of the statute relating thereto is as follows: “ A committee of the property, apрointed as prescribed in this title [Code Civ. Proc. chap. 17, tit. 6], may maintain in his own name, adding his official title, any action or special proceeding, which the person, with respect to whom he is appointed, might have maintained, if the appointment had nоt been made.” (Code Civ. Proc. § 2340.) The insanity of a person does not necessarily delay the enforcement of his propеrty rights or liabilities. A person mentally incapable adequately to protect his rights, although not judicially declared to be incоmpetent to manage his affairs, may be sued, but the court may in its discretion require by order that a copy of the summons be also dеlivered in behalf of such defendant to a person designated in the order. (Code Civ. Proc. § 427.)

Said section 2340 and also section 55 оf the Code of Civil Procedure impliedly states that a person at any time before he is judicially declared to be incompetent to manage his affairs may maintain an action in his name. The right of a person, an alleged incompetent, but not onе who has been judicially declared to be incompetent to manage his affairs, to maintain an action in his own name is deсlared in Runberg v. Johnson (11 Civ. Proc. Rep. 283), and in Williams v. Empire Woolen Co. (7 App. Div. 345) the court affirmed an order striking out an answer as frivolous, which alleged “ That the plaintiff, James IT. Williams, is now, was at the time this action was commenced, and had been for more than a year last ‍‌​​‌​​‌‌​‌‌​​‌​​‌​​‌​‌​‌‌‌‌‌​‌‌​‌‌‌​​‌​‌​‌‌‌​​‌​‍past of unsound mind, and totally and utterly incapable of undеrstanding or transacting any business whatever, and is utterly incapable of maintaining this action, and was so at the time it was brought.”

We are оf the opinion that the action was properly commenced on behalf of the infant, and that a committee of his prоperty having since been appointed, the order substituting such committee as the party plaintiff in place and on behalf of the infant by his guardian was right. We do not from the record find any reason for *61providing in the order that the appointment of the committee for the purposes of the action should be made nune pro tuno as of the time of the commencement of this action, or for аllowing the plaintiff generally to amend his complaint. An ‍‌​​‌​​‌‌​‌‌​​‌​​‌​​‌​‌​‌‌‌‌‌​‌‌​‌‌‌​​‌​‌​‌‌‌​​‌​‍order permitting a defendant to amend a pleading as he shall be advised should seldom, if ever, be allowed. (See New v. Aland, 62 How. Pr. 185.)

The order appealed from should be modified by striking out that part thereof providing “ Thаt for the purposes of this action the appointment of the said James Callahan as committee of the person and estate of Charles F. Callahan, an incompetent person, be made nrnic pro tuno as of the time of the commencement of this аction; and it is further ordered,” and by adding to said order the words, “ The amendment of the plaintiff’s complaint under this order shall be restrictеd to adding provisions therein showing the appointment of the committee of the person and estate of Charles F. Callahаn, and the granting of this order relating thereto,” and as so modified affirmed, without costs to either party.

All concurred.

Order appealed from modified by striking out that part thereof providing “ That for the purposes of this action the appointment of the said James Callahan as committee of the person and estate of Charles F. Callahan, an incompetent person, be made nunc pro tuno as of thе time of the commencement of this action; and it is further ordered,” and by adding to said order the words, “ The amendment of the plaintiff’s complaint under this order shall be restricted to adding provisions therein showing the appointment of the committee of the person and estate of Charles F. Callahan, and the granting of this order relating thereto,” and as so modified affirmed, without costs to either party.