Opinion
June Term, 1896.
P.C.J. De Angelis, for the appellant.
F.G. Fincke, for the respondent.
Section 55 of the Code of Civil Procedure provides as follows: "A party to a civil action, who is of full age, may prosecute or defend the same in person or by attorney, at his election, unless he has been judicially declared to be incompetent to manage his affairs. * * *"
Section 2320 of the Code of Civil Procedure confers upon the Supreme Court jurisdiction over the custody of the person and the care of the property of a person incompetent to manage himself or his affairs, in consequence of lunacy, idiocy, habitual drunkenness or imbecility arising from old age or loss of memory and understanding and other cause. That section also provides that, in all proceedings for the appointment of committee, such a person shall be designated "an alleged incompetent person," and, after the appointment of a committee of such person in all subsequent proceedings, the lunatic, idiot, habitual drunkard or imbecile shall be designated "an incompetent person."
Section 2321 of the Code of Civil Procedure provides that the court exercising jurisdiction over the property of either of the incompetent persons specified in the preceding section "must preserve his property from waste or destruction." The subsequent section, 2322, provides, viz.: "The jurisdiction, specified in the last two sections, must be exercised by means of a committee of the person, or a committee of the property, or of a particular portion of the property, of the incompetent person, appointed as prescribed in this title."
Section 2323 provides that an application for the appointment of such a committee must be made by petition.
Probably it is true, as claimed by the learned counsel for the appellant, that "neither the Code nor the practice makes any provision for the appointment of a guardian, or any person to commence and prosecute an action for a person wholly without understanding."
In Runberg v. Johnson (11 Civ. Proc. Rep. 283) it was held, viz.: "An action may be commenced in the name of a person of unsound mind before he has been judicially declared such; the Code of Civil Procedure does not prohibit the bringing of an action and does not change the legal status of the lunatic until the court interposes its jurisdiction." In that case it was intimated that "where an attorney is responsible and brings an action without authority, the party in whose name the action is brought is bound by the judgment therein and must seek his remedy against the attorney; and that this is so although such party is a lunatic."
In Brown v. Nichols ( 42 N.Y. 26) it was held that, where an attorney appeared without authority for a defendant, the judgment "cannot be attacked for want of jurisdiction in any collateral proceeding, and is binding upon such defendant."
It is to be observed that in the answer under consideration there is no averment that the attorneys who brought the action in the name of the plaintiff were not properly authorized to institute the action. It is inferable that the cestui que trust has certain rights and interests in the cause of action set out in the complaint. There is nothing in the answer or in the papers found in the appeal book to indicate any actual want of authority in the attorneys who bring the action in behalf of the plaintiff.
In the course of the opinion delivered by ALLEN, J., in Sanford v. Sanford ( 62 N.Y. 553) it was said: "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, and hence the fact that they are not in all respects sui juris has not been regarded as a reason for extending the time allowed by statute for commencing actions against them."
In Prentiss v. Cornell (31 Hun, 167) it was said: "The mental incapacity or incompetency of parties presents no interference with the enforcement of legal liabilities. The institution of legal proceedings against lunatics is not inhibited. They may be sued and actions may be maintained against them, and whether their insanity will constitute a defense depends on the circumstances of the case. `In this case no proceedings had been instituted at the time of the commencement of this action to inquire into the mental condition of these defendants, and they stood before the world with the presumption of sanity in their favor.'"
In Hawley v. Brennan (9 N.Y. St. Repr. 505) it was said: "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."
In Faulkner v. M'Clure (18 Johns. 134) the defendant was non compos mentis, but he was of full age and the action was allowed to proceed.
If we were to assume that Murray, who verified the complaint, was not authorized to do so, still the complaint would not be defective, it would be good as an unverified complaint. The verification is not an essential part of the complaint. We think the answer contains no defense to the allegations of the complaint, and that the order striking it out and ordering judgment for the plaintiff should be sustained.
All concurred.
Order affirmed, with ten dollars costs and disbursements.