122 N.Y.S. 174 | N.Y. App. Div. | 1910
Lead Opinion
The complaint sets up the following facts: That on January 6, 1909, a petition was presented to the Supreme Court by Sarah A.
■ To this complaint the defendant demurred : First,vogon the ground that it did not state facts sufficient to constitute a cause of action ; second, that the plaintiff had. no legal capacity to sue, inasmuch as it is an attempt to maintain an action by an incompetent person. as plaintiff through a guardian ad litem. The demurrer was sustained upon the ground that the plaintiff had not legal capacity to sue, and a judgment dismissing the complaint was entered, from which the plaintiff appeals.
If the action on the note had not yet gone to judgment the court, by express provision of the Code, would have been authorized to have appointed a person to protect Moore’s interests in that action, • Section 427 provides that: “ * * * If the court has in its opinion reasonable ground to believe that the defendant, by reason of habitual drunkenness, or for any other cause, is mentally incapable adequately to protect his rights, although not judicially declared to' be incompetent to manage his affairs, the court may, in its discretion, with or without an application therefor, and in the defendant’s interest, make an order requiring a copy of the summons to bb also delivered in behalf of thd defendant to a person designated in the order, and that service of the summons shall not. be deemed complete until it is so delivered;” And section 428 provides that if the defendant is a person judicially declared to be incompetent to manage' his affairs in consequence of lunacy, idiocy or habitual drunkenness, and for whom a committee has been.appointedj “ the court may, * - - at any stage of the action, appoint á special guardian ad litem to conduct the defence for the incompetent defendant, to the'exclusion. of the committee, and with the same
That is, express power is conferred by the Code to appoint a guardian ad litem for an incompetent defendant. This action is in effect for the purpose of interposing the defense, which could have been interposed in the action upon the note if the conduct. of the present defendant, Flagg, had not precluded the possibility of a defense therein. It is not an affirmative action to recover a money judgment against the defendant, but is in equity to protect the property of the plaintiff by procuring the setting aside of a judgment alleged to have been obtained by deceit, undue influence and fraud. '
While the plaintiff has been judicially declared to be an incompetent and a committee of his person has been appointed, there lias been no appointment of a committee of his property, and, therefore, section 2340 of the Code of Civil Procedure, providing that actions may be brought by the committee of the property does not apply.
As the court appointed a committee of the person of the incompetent, but did not appoint a committee of his property, we must assume that it refrained from so doing for good and sufficient reason. The same court, upon the application of the committee of the person, whom it had appointed, a few days thereafter appointed a guardian ad litem for the express purpose of instituting this suit. We think the order justifiable in exercise of the inherent power of the court in such cases.
In Sporza v. German Savings Bank (192 N. Y. 8) Haight, J., said: “Jurisdiction is inherent in the State over unfortunate persons within its limits who are idiots or have been deprived of the use of their mental faculties. It is its duty to protect the community from the acts of those persons who are not under the guidance of reason, and also to protect them, their persons and property from their own disordered and insane acts.” After showing that this care was part of the prerogative of the English sovereign and was afterwards transferred to the lord chancellor, not as a part of his equitable jurisdiction, but as the King’s delegate, to exercise his special jurisdiction, the court proceeded : “ On our separation from Great Britain at the time of the Revolution, so much of the law, as
In Matter of Andrews (192 N. Y. 514) Willard Bartlett, J., said: “ The present Constitution of the State, adopted in 1894, continues the Supreme Court ‘ with general jurisdiction in law and equity.’ (Const, art. YI, sec. 1.) , This preserves the jurisdiction over the lunatics and their property which was originally vested in the Chancellor and Court of Chancery and was subsequently transferred to the old Supreme Court, as it existed prior to the adoption of the Constitution of 1846. That' jurisdiction, however, as.to the manner of its exercise may be regulated by the Legislature, and where this has not been done, it is to be exercised according to the established practice of the courts in lunacy cases.”
Illustrating the exercise by the chancellor of equitable powers in such matters; irrespective of statute, we may refer to Matter of Barker (2 Johns. Ch. 232), decided in 1816. This was an application for a commission, the nature of the writ being de bxnaiico inqui
In Malin v. Malin (2 Johns. Ch. 238) objection was made at the opening of the cause at the hearing that Jemima Wilkinson ought to have been made a party plaintiff as she was the. only person equitably entitled according to the showing in the bill, and it was answered that she could not be prevailed on, from scruples of conscience peculiar to the sect, to become a party. The chancellor said: “If Jemima W. has religious scruples which cannot be surmounted and this shall be made to appear, either by affidavit or the report of a master, as may be directed, perhaps she may be permitted to become plaintiff "by her prochein amy. A person incompetent'to protect himself from age, or weakness of mind, or from some religious delusion or fanaticism, quern urget fanaticéis
In Markle v. Marikle (4 Johns. Ch. [1819] 168) the petition of the defendant Jacob Maride stating that Delia Maride, one of the defendants, and who is his sister and unmarried, is of the age of sixty years, and has been deaf and dumb from her infancy and is of such imbecility of mind as to be incapable of defending the suit. Ford for the defendant moved that a guardian be appointed to appear and put in her answer and defend the suit. Opinion per euriam,: “ Motion granted.. Cases to this effect were referred to in 2 Johnson’s Ch. Rep. 235.”
Montgomery v. Montgomery (3 Barb. Ch. [1848] 132.) This case came before the chancellor upon a bill filed by the husband against his wife to annul the marriage contract between them on the ground of fraud. Chancellor Walworth said: “ There are several objections in this case to the granting of the relief asked for by the complainant. His solicitor, who saw the defendant about two years previous to the time of his examination as a witness before the master, testified that she was then^ in a state of apparent idiocy. If that was the case he should have procured the appointment of a guardian ad litem to appear and defend this suit for her.”
In Hunter v. Hatfield (12 Hun, 381), Barnard, P. J., said: “‘So if a person, who is in the condition of an idiot or lunatic, though not found such by inquisition, is made a defendant, the Court of Chancery, upon proper information of his incapacity, will direct a guardian to be appointed.’ (3 Bacon Ab. vol. 3, page 542; Mitford’s Eq. Pleadings, 95.) * * * Cur Court of Chancery was clothed by statute with the care and custody of all idiots and lunatics. (2 R. S. 52, § 1.) Such power is now vested in the Supreme Court. The court, at Special Term, therefore, properly appointed a committee or guardian for the purpose of the action upon the petition of a near relative of thé lunatic.”
Hanly v. Brennan (19 Abb. N. C. 186, General Term, City Court, 1887, McAdam, Ch. J.): “ The court below, on the application of the plaintiff, appointed a guardian for the defendant to appear and defend the action for him. The defendant is non
Hpon inquisition found, and appointment of a committee of the person, the incompetent has not become an outlaw. The title to his property remains vested in him. “ The mental incompetency of the intestate, whether judicially determined or not, did not interfere with the enforcement of the legal liability resulting from the relation and the acts and necessities of the parties. Legal liabilities may be enforced agáinst lunatics, idiots and infants. * * *
Whether insanity or idiocy constitutes a defense to an action depends upon circumstances, and courts will properly protect the rights of those incompetent to care for themselves. But there is no inhibition of a legal proceeding against them.” (Sanford v. Sanford, 62 N. Y. 553.)
“ But the committee of a lunatic takes no title to the real or personal estate of a lunatic. He is a mere bailiff to take charge of the property of the lunatic and to administer it subject to the direction of the court. His possession is the possession of the court.
The plaintiff in the case at' bar is William J. Moore. . The cause of action set up in the complaint is vested in him. To be sure he appears by his guardian ad litem, but so does an infant in an action brought to assert the infant’s rights. The demurrer was sustained upon the ground that the plaintiff had no legal capacity to sue. “A guardian ad litem is not a party to the suit, but is an officer appointed by a court of justice in' a cause to prosecute or defend for, or otherwise to represent and look after the interests of an infant or an insane person whose property rights are affected by the judgment or decree, the rendition of which' is contemplated.” (15 Am. & Eng. Ency. of Law [2d ed.], 2.)
“ A guardian ad litem is not a party to an action; he simply ■represents the party.” (Behlen v. Behlen, 73 App. Div. 143.)
“The objection is taken that the action is improperly brought by the infant in his own name by his. guardian ad litem, and that it should have been brought' by the general guardian of the infant in his own name as such general guardian. * * * ¡Notwithstanding the appointment of a general guardian the title to the property is in the infant. The statute gives-to the guardian the custody and management of the personal estate, but the beneficial interest is in the infant. * * *' We think that the action was well brought in the name of the infant by his guardian ad litem.” (Segelken v. Meyer, 94 N. Y. 473.)
We think the demurrer cannot be sustained. We have not overlooked the case relied upon by the Special Term. (Rankert v, Rankert, 105 App. Div. 37.) That case is distinguishable ■ upon the ground that a committee of the person and property had been appointed at- the time that the guardian ad litem was appointed. One of the learned justices concurred in the result, and another dissented upon the distinct ground, that demurrer would not lie. ■ Where a committee, of the property has been appointed of course the Code expressly provides that the action may be brought by him; but the ' language being permissive even under such circumstances, it might well be that special occasions might arise where adverse interests might exist in regard to a particular litigation, which would make it
The judgment appealed from should be reversed and the demurrer overruled, with costs in this court and at the Special Term, with leave to defendant to withdraw the same upon the payment thereof and to answer over.
Ingraham, P. J., Latjghlin, Scott and Miller, JJ., concurred.
See Laws of 1788, chap. 13; Laws of 1801, chap. 30; 1 K. & R. 316, chap. 30; 1 R. L. 147, chap. 30.—Rep,
Wilson v. Grace.— [Rep.
Matter of Barker, supra.— [Rep.
See 6th Am. ed.— [Rep.
Concurrence Opinion
Whatever cause of action existed it was vested in the incompetent, and as such the incompetent had the right to maintain an action to enforce it. If the appointment of the guardian ad litem was unauthorized, it would not make the complaint demurrable, as the complaint alleges a good cause of action in favor of the plaintiff (the incompetent) against the defendant.
I agree with Mr. Justice Clarke that the court has inherent power to appoint a guardian ad litem irrespective of any provision of the Code when necessary to protect the right of a ward of the court who is incompetent to properly protect his rights..
Judgment reversed, with costs, demurrer overruled, with costs, with leave to ■ defendant to withdraw demurrer and to answer on .payment of costs in this court and in the court below.