
    MATTER OF DELAHUNTY.
    
      N. Y. Supreme Court, General Term, First Department;
    
    
      May, 1892.
    3. Leave to sue the committee of a lunatic9 An action in the N. Y. city court against a lunatic cannot be continued against his committee appointed by the supreme court after the commencement of such action without the leave of the supreme court. If the city court proceeds without such leave, and the plaintiff obtains judgment, the enforcement of the judgment will be enjoined by the supreme court.
    
    ■2. The samel] After such judgment has been obtained, thesupreme court will not grant leave to plaintiff nunc pro tunc to maintain ' the action; leave only to bring a new action will be granted.
    
    3. Parties; insane person.] To recover on an obligation of an adjudicated lunatic, action should be brought against both him and his committee (so held at special term).
    Appeal from an order restraining the enforcement of a judgment obtained in the N. Y. City Court, and also from .an order denying a motion to allow plaintiff to institute .and maintain such action in the City Court.
    An action was brought in the city court by David Rosenbaum against Felicia Denison. Subsequent to the Fringing of the action Felicia Denison was declared a lunatic by proceedings in the supreme court, and John Delahunty was appointed as her committee. Upon plaintiff’s motion the committee was substituted as defendant in the action, and he by answer interposed the defense that no leave to sue had been obtained. Notwithstanding this objection the city court proceeded and the plaintiff obtained judgment. Upon motion the supreme court, 'granted the order, restraining the enforcement of ther judgment, but gave leave to the plaintiff to apply for-leave to sue. The plaintiff thereupon made a motion that an order be entered nunc pro tunc to allow the action to-be maintained. Upon denying this latter motion at. special term
    PATTERSON, J., [ after stating facts] said : I am of ther opinion that this application must be denied. The control of the estate of a lunatic is vested by the statute in. the supreme court, as succeeding to the power and authority- which the chancellor had over the estates of lunatics-'under the statutes of this State, and unless a judgment, were obtained in a legal action against a lunatic, beforéthe appointment of a committee, it was part of the power of the chancellor to restrain the enforcement of assertecL claims against such lunatic.
    The granting of an order such as is asked for now would give an absolute right to revive a judgment against the committee of a lunatic, which was improperly-obtained, without any authority from the court having in charge the estate of the lunatic. The committee is merely-the agent of the court (People ex rel. Smith v. Comm’rs of Taxes, etc., 100 N. Y. 215), and before any proceeding-should be carried to an effective result, the court appointing the committee should have full cognizance of all the-facts constituting the alleged claim.
    The case is not similiar to that of an action brought: against a receiver where permission to sue may in the.first instance be obtained from the court, or where, after-the suit is instituted without such preliminary permission,, the court may subsequently authorize its continuance by-an order nunc pro tunc, allowing the action to be brought,'' The proceedings on the trial in the city court may have-been entirely fair in their conduct, but this court will not now undertake an investigation as to what was done on the trial of that case. The permission given on the former motion for leave to sue did not contemplate such an application as this. It was meant that there should be an original application made to this court in the way established by law to realize upon the claim asserted by Mr. Rosenbaum. That application may be made in one of two ways—either by a petition to the court to compel the committee to pay a debt, or, by the institution of an action with the leave of the court to recover that debt.
    This practice was indicated in the Matter of Hopper (5 Paige, 490), where it is said that “ The proper course for a party who has a claim against a lunatic or his estate, is to apply to this court by petition, for the payment of the debt, or for leave to bring a suit for the purpose of establishing the claim, and if the chancellor or vice-chancellor by whom the committee was appointed is satisfied the debt is justly due, the committee will be ordered to pay it out of the estate, or if the claim is doubtful, the court will either have it settled by reference to a master, or give the claimant permission to establish his claim by a suit at law or a bill in equity, as may be proper under the particular circumstances of the case.”
    I can see no objection to a bill being filed against the lunatic and his committee jointly, for that was done in the case of New v. New (6 Paige, 238), where the chancellor says : “ In the case of lunatics it appears to be well settled that they are to defend suits in equity by their committees ; and upon a joint bill filed against the lunatic and the committee of his estate, the latter, if he has no interest adverse to that of the lunatic, is, as a matter of course, appointed guardian to appear and answer for him.”
    It seems to me that the proper procedure in a case of this kind would be to institute an independent action by the leave of the court against the lunatic and against the committee, and the whole merits of Mr. Rosenbaum’s case may be determined in such an action. It would seem upon principle to be reasonable that where a lunatic is sued (he being incapable of answering the suit), the person who is charged with the responsibility of the administration of the estate should be brought under the present system of pleading, before the court to defend the estate in his hands, but by reason of his peculiar relation he should not be sued without permission of the court.
    This motion is, therefore, denied, but an order may be entered allowing Mr. Rosenbaum to bring a suit against the lunatic and the committee to recover the debt which the plaintiff claims to be due from the lunatic to him.
    
      A. Kling, for appellant.
    
      Donohue, Newcombe & Cardozo, for respondent.
    
      
       For an explanation of the distinction between the cases where leave to sue is'part of the cause of action and those where it is a mere condition of regularity, see Abb. Brief on Pl. 249, § 287, etc., p. 735, § 924, etc. For the practice and forms, see 1 Abb. New P. & F. 544, etc.
    
    
      
      For leave nunc pro tunc, see 1 Abb. New P. & F. 559, 560.
    
   Per Curiam [after stating facts].

We think that the committee had the right to rely upon the defense set forth in the answer that no leave to sue had been granted ; and that in consequence of such defense the city court had no right to proceed in the action ; and that therefore, the order restraining the enforcement of the judgment was properly granted.

It has been, expressly held in a number of cases that the supreme court has authority to restrain the enforcement of asserted claims against a lunatic’s estate, and to compel the claimant to establish his demand as it may prescribe (In re Otis, 101 N. Y. 580 ; In re Beckwith, 87 Id. 503 ; Carter v. Beckwith, 128 Id. 312-16; Code Civ. Pro. §§ 2320, 2321, 2322, 2339).

The court, having the power, was justified under the facts shown in making the order appealed from, and It should be affirmed, with $10 costs and disbursements.

With respect to the second order appealed from, denying the application for leave to sue the committee .nunc pro tunc, this also, we think, should be affirmed. Upon the facts appearing, the learned court very properly said that the proper procedure in a case of this kind would be to institute an independent action by leave of the court against the lunatic and against the committee, apd the whole merits of Rosenbaum’s case might be determined in such an action. This course can result in no injustice to Rosenbaum; he having proceeded in the action against the lunatic without the permission of the court, which was essential to its maintenance, should now be required .to do what was necessary to enforce his claim against the lunatic.

We think, therefore, that this order also should be -affirmed, with $iq costs and disbursements. 
      
       Present: Van Brunt, P. J., O’Brien and Ingraham, JJ.
     