
    Harry D. Carter, Respondent, v. Sarah Frederica P. Burrall, Defendant. George E. Greene, Committee of the Property of Sarah Frederica P. Burrall, Appellant.
    
      Attachment against a non-resident lunatic—rights of a committee subsequently appointed in respect to a stay of the action and the defense thereof—permission of the court to bring the action.
    
    Where, after the commencement of an action against a non-resident lunatic, and the seizure of her real property under a warrant of attachment, the lunatic is judicially declared incompetent and a committee of her property is appointed, the court may properly deny a motion by the committee to be allowed to appear specially in the action for the purpose of having the action stayed and all proceedings taken therein vacated, on the ground that no permission had ever been granted to sue the committee.
    In such a case, the committee, if he so elects, is entitled to come in and defend the action, and, if he declines to do so, the plaintiff may apply for leave to make him a party.
    Appeal by George E. Greene, committee of the property of Sarah Frederica P. Burrall, from an order of the Supreme Court, made at the Kings County Special Term, bearing date the 25th day of November, 1902, and entered in the office of the clerk of the county of Nassau, denying the motion of the said committee for leave to appear in said action for the purpose of having said action stayed, and all proceedings theretofore had therein vacated.
    
      A. K. Potter, for the appellant.
    
      Joseph N. Tuttle, for the respondent.
   Hooker, J.:

This action was begun against the defendant on the 8th day of August, 1902, by attachment, and the sheriff of ¡Niagara county then seized certain real property of the defendant, situate in that county. The ground of attachment was that the defendant was a non-resident. The summons was served by publication, pursuant to an order granted September 4, 1902. At the time of the commencement of the action the defendant was a resident of London, England, and was confined in a lunatic asylum in that city. The affidavits in support of the order of publication showed that the defendant was incompetent to manage her affairs, and the order directed that the summons, complaint and order be mailed to the collector or head of the asylum, as well as to the defendant. This direction was complied with, and publication of the summons was begun on September 5, 1902. Subsequently, proceedings were had in the Supreme Court, Niagara county, by which it was determined that the defendant was incompetent to manage her affairs, and one George E. Greene, of that county, was appointed by the court the committee of the property of the defendant. Before the service of the summons was complete this committee moved at Special Term in Nassau county, where the venue herein is laid, for permission to appear specially in this action for the purpose of having the action stayed and all proceedings vacated on the ground that no permission had ever been granted to sue the committee of this defendant. The motion was denied, and from the order denying same the committee appeals.

The plaintiff carefully and closely followed the procedure laid down in section 427 of the Code of Civil Procedure, showed to the court the fact of the mental incapacity of the defendant, and procured its direction in the premises. No claim can be made that the plaintiff was without his strict legal rights at any time up to the appointment of the committee. 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. (Mutual Life Ins. Co. v. Hunt, 14 Hun, 169; 79 N. Y. 541; Sanford v. Sanford, 62 id. 553; Prentiss v. Cornell, 31 Hun, 167; Kent v. West, 16 App. Div. 496.) It is undoubted that the custody, control and disposition of the property of the lunatic is committed entirely to the judgment and discretion of the court, and that after the appointment of the committee the court has power to direct the application of his estate to the payment of his debts. (Matter of Otis, 101 N. Y. 580; Carter v. Beckwith, 128 id. 312.) But the Special Term in this case has not seen fit to exercise that discretion to the disadvantage of the plaintiff, and we are not disposed to interfere with its determination. It has in effect said that under the circumstances the plaintiff should be allowed the advantage of the lien he has obtained by attachment. On the showing made by the papers before us any other disposition of the matter would have been unjust. If the committee should be allowed now to succeed in his endeavor to stay this action and vacate all proceedings had herein, the plaintiff would lose the advantage of his lien. (Matter of Hopper, 5 Paige, 489.) Ho one suffers injustice by this advantage to him, for all defendant’s creditors prior to the attachment possessed rights equal with those of the plaintiff to proceed as he has, and neither defendant nor the personal representatives are entitled to the property attached in defiance of her creditors. It is true that Matter of Delahunty (44 N. Y. St. Repr. 836) seems to hold a contrary doctrine, but there the committee was brought into the action on the application of the plaintiff and the City Court of Hew York without first obtaining the leave of the Supreme Court, which made the appointment, to proceed against him; and there, too, no question was presented of compelling the plaintiff to sacrifice a valuable lien.

It follows, from what has been said, that the order appealed from should be affirmed. We may add, however, that the committee, if he so elects, is entitled to come in and defend the action, and, indeed, that the proper course for the plaintiff, in our judgment, is to apply at the Special Term for leave to make the committee a party defendant, unless he comes in the action of his own accord.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Goodrich, P. J., Bartlett, Hirschberg and Jenks, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  