First Department, March, 1910. [Vol. 137. order entered April twenty-second for the purpose of this action, on application duly made by the said Sarah A. Moore, as committee of the person of the said plaintiff. The complaint demands judgment that the said note be declared null and void and be delivered up and canceled; that the service of the summons in Flagg v. Moore be set aside; that the judgment therein entered be declared void and fraudulent and be ordered canceled, and the defendant restrained from taking any proceedings to enforce said judgment, and that pending the determination of the trial of this action a temporary injunction issue restraining the defendant from taking any proceedings to enforce said judgment. To this complaint the defendant demurred: First, upon 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 be also delivered in behalf of the 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 appointed, "the court may, * * * at any stage of the action, appoint a special guardian ad litem to conduct the defence for the incompetent defendant, to the exclusion of the committee, and with the same App. Div.] First Department, March, 1910. powers and subject to the same liabilities as a committee of the property." 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 has 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 First Department, March, 1910. * * * [Vol. 137. formed a part of the King's prerogative which was applicable under our form of government, was vested in the People of the State and by legislative enactments was transferred to the Chancellor, who should have the care of and provide for the safekeeping of all idiots and lunatics, and of their real and personal estates. (Act concerning lunatics, passed March 20, 1801; Revised Laws of 1813, ch. 30, vol. 1, p. 141.)* And upon the organization of the Supreme Court this jurisdiction was transferred to it. In Matter of Tracy (1 Paige, 580) Chancellor WALWORTH says: "In this State the care and custody of the estates of lunatics, idiots and habitual drunkards is confided to this court, without any restriction or limitation. The manner in which the control is to be exercised must, therefore, depend upon the sound discretion of the Chancellor.' * * * If she had been adjudged to be insane, then she has been deprived of no constitutional right; for, being an insane person, she had become a ward of the Supreme Court, which has succeeded to the powers of the Chancellor, and the custody of her person and property became subject to the control and management of the court through its specified agents appointed for that purpose. She is not deprived of her property, for the court undertakes its care and management in her behalf and for her benefit." 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. VI, 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 lunatico inqui *See Laws of 1788, chap. 12; Laws of 1801, chap. 30; 1 K. & R. 216, chap. 30; 1 R. L. 147, chap. 30.- REP. App. Div.] First Department, March, 1910. rendo, brought by the children of a man eighty-five years of age. Chancellor KENT, after pointing out that down to the time of Lord HARDWICKE it was understood that there was no specific relief in the case of incapacity from mere weakness of mind, but that lunacy had to be alleged, said: "There are cases as ancient as the time of Lord TALBOT and Lord Keeper WRIGHT (Leving v. Caverly, Prec. in Ch. 229; Anon., 3 P. Wms. 111, note), in which the court has protected the weakness of very superannuated persons, whose minds had nearly perished, by admitting them, on due proof, by affidavit or otherwise, of such imbecility, to appear and answer by guardian; and this course is still pursued in such cases. (14 Vesey, 172.*) * * * Lord ERSKINE in the case of Ex parte Cranmer (12 Vesey, 445), did not admit any defect of his jurisdiction. * * If the mind, as he observed, be disorganized by sickness, grief, or old age, who could say he had not jurisdiction, and why should not a man be protected in his second state of infancy as well as in the first? He felt as Lord ELDON appears strongly to have felt, that persons who are, above all others, entitled to protection, should not go unprotected. * * I'am satisfied that these * * * * * later decisions are not only founded in good sense, and the necessity of the case, but are a sound exposition of the common law, which gave to the king, as parens patriæ, the care and custody of all persons who had lost their intellects and become non compos or incompetent to take care of themselves." 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, quem urget fanaticus *Wilson v. Grace.- [REP. First Department, March, 1910. [Vol. 137. error vel iracunda Diana, ought to come under the protection of the court." In Markle v. Markle (4 Johns. Ch. [1819] 168) the petition of the defendant Jacob Markle stating that Delia Markle, 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 curiam: "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.) Our 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 the 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 *Matter of Barker, supra.- [REP. |