
    Eugene K. Smith, Plaintiff, v. Alice Keteltas et al., Defendants.
    (Supreme Court, New York Special Term,
    February, 1898.)
    Guardian ad litem for incompetent defendant — Appointment — Leave to. sue—Code of Civil Procedure, § 428.
    A guardian ad litem cannot be appointed ex parte, under the Code of.Civil Procedure, § 428, for an incompetent defendant in an action, where no leave to sue has been first obtained' as that section authorizes such an appointment only after legal service of the summons upon him and upon"his committee; and where no such leave has been obtained, the service of the summons is improper, and the appointment of the guardian ad litem and the service must be set aside.
    Motion to set aside service of ■ summons and complaint on incompetent defendants, because action was commenced without permission of court.
    Parsons, Shepard & Ogden, for motion.
    C. Bainbridge Smith, opposed.
   Truax, J.

It was held in Soverhill v. Dickson, 5 How. Pr. 109, that an action could ncjt be brought against a lunatic, for whom a committee had been appointed, without an application to this court, although the third subdivision of section 134 of the Oode of Procedure provided for the service of a summons upon the committee of the lunatic and upon the lunatic personally'. To the same effect is Matter of Delahunty, 28 Abb. 1ST. O. 245, decided in. 1892 by the General Term of the first department. “It has been supposed,” said Judge Welles, in Soverhill v. Dickson, “ that section 134 of the Oode'authorized the commencement-of the action at once and without first applying for leave to prosecute. But this cannot be so. It only provides whir the summons shall be served upon¿ where an action is to be commenced.” The second subdivision of section 426 of .the Code of Civil Procedure is no broader than subdivision 3 of section 134 of the Oode of Procedure. In the case now before me a guardian ad litem was appointed eoe parte, and it is claimed that such an appointment is authorized by section 428 of the Code of Civil Procedure. ■ That section authorizes the appointment of a guardian ad litem only when it appears that the interest of the committee “ to whom a copy of the summons has been delivered is adverse to that of the defendant.” That is, section 428 authorizes the appointment only after the service of the summons upon the committee ,and the defendant as prescribed by subdivision 2 of section 426. But it has been shown that such a service can legally be made only after leave of the court has first been obtained. No such leave having been obtained* in this case, the service of the summons on the committee and the appointment of a guardian ad litem should be set aside. Motion, granted, with $10 costs.

Motion granted, with $10 costs.  