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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.

App. Div.]

First Department, March, 1910. compos mentis, but of full age, not an idiot from nativity, has not been judicially declared insane in proceedings instituted for that purpose, and no committee of his person or estate has as yet been appointed. The question presented is whether the court below had power to make such an order. We do not find any express provision of the Code especially applicable to such a case; bnt we do find authorities which assert the existence of the power and approve of its exercise. * * * The insanity of the defendant does not prevent this jurisdiction from attaching, for lunatics may be sued precisely as though they were sane. Legal liabilities may be enforced against lunatics, whether the mental incapacity has been judicially declared or not (Sanford v. Sanford, 62 N. Y. 553; Brown v. Nichols, 9 Abb. Pr. [N. S.] 1, 15; Prentiss v. Cornell, 31 Hun, 167; Clarke v. Dunham, 4 Denio, 262.) The following cases sustain the practice followed at Special Term. They seem to hold that the proper course is to have a guardian appointed, and that if the lunatic's friends do not move the plaintiff may (Wilson v. Grace, 14 Vesey, Jr., 172; Heller v. Heller, 6 How. Pr. 194; 1 Dan. Ch. Pr. 177 ;* Thelford on Lunacy, 425; 1 Barb. Ch. Pr. 86; Faulkner v. McClure, 18 Johns. 134).”

Upon 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 against 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.

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First Department, March, 1910.

(Vol. 137. [In re Heller, 3 Paige, 199; Noe v. Gibson, 7 Paige, 513; Petrie v. Shoemaker, 24 Wend. 85; Lane v. Schermerhorn, 1 Hill, 97.]” (Matter of Otis, 101 N. Y. 580.)

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 bronght 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

App. Div.)

First Department, March, 1910. advisable that the incompetent be represented in that litigation by a special representative of the court, although no sufficient reason existed for removing the committee from his general control of the incompetent's property. The Supreme Court, as a court of general jurisdiction at law and in equity, possesses inherent powers, among which is the care, custody and control of incompetents. The exercise of such power may be regulated by statute, but in the absence of prohibitory legislation we are unable to perceive any reason why under the circumstances of this case the appointment of the guardian ad litem was not proper.

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., Laughlin, Scott and MILLER, JJ., concurred. INGRAHAM, P. J. (concurring):

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.

First Department, March, 1910.

[Vol. 137.

SOPHIE MARAN, Respondent, v. GEORGE MARAN, Appellant.

First Department, March 24, 1910.

Husband and wife — alimony- discharge of defendant after imprison

ment for contempt - rearrest not authorized – stay.

A person who has been committed for contempt for failure to pay alimony pendente lite, and has been released after serving the term of imprisonment prescribed by section 111 of the Code of Civil Procedure, cannot be rearrested

for a failure to pay alimony subsequently accruing. The plaintiff, however, may pursue any other remedy, and while she is not

entitled to a stay which will prevent the defendant from defending an action for separation, she is entitled to a stay of affirmative proceedings on his

counterclaim for the same relief. LAUGHLIN, J., dissented, with opinion.

APPEAL by the defendant, George Maran, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of February, 1910.

Harry A. Gordon, for the appellant.

Abraham H. Sarasohn, for the respondent. Scott, J.:

Appeal from order staying all proceedings on the part of defendant. The action was begun October 2, 1908, for a separation. Defendant answered denying the allegations of the complaint and counterclaiming for a separation on his part. On October 29, 1908, an order was made directing defendant to pay forty dollars counsel fee and six dollars per week alimony. He paid a part of the counsel fee and paid alimony until January 25, 1909, when he ceased paying. On March 30, 1909, defendant was adjudged guilty of contempt and sentenced to imprisonment. He remained in jail until July 1, 1909, when he was discharged under section 111 of the Code of Civil Procedure, having served three months. The action is on the calendar and has been called twice, having been put over each time on account of plaintiff's condition of health. On January 26, 1910, by permission of the court, defendant served an amended

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