
    American Mortgage Company, Plaintiff, v. William C. Dewey, Appellant, Impleaded with the New York Trust Company and Others, Respondents.
    
      Incompetent, not so adjudged—power of the court to p'otect his interest in surplus-money proceedings arising on a mortgage foreclosure.—proper procedure.
    
    The Supreme Court has inherent power to protect the interests of incompetents, in addition to the power expressly conferred upon it by the Code of Civil Procedure for that purpose.
    If the provisions of the Code of Civil Procedure prescribe the way in which the power-shall be exercised, such provisions must be followed; but if the Code of Civil Procedure doe's not regulate the manner in which the power shall be exercised, then it becomes the duty of the court to determine the mode and manner in which the power can be best exercised to effect the end desired.
    Where a defendant, who has a substantial interest in a controversy, is non compos mentis, but has not been judicially declared insane, and the court, under the provisions of section 427 of the Code of Civil Procedure, directs that the summons be delivered on her behalf to a third person, the duty of such third person is not confined to the mere receiving of the summons, but the order directing the delivery of the summons to him should be sufficiently broad to enable; him to look after the interests of the incompetent defendant at every stage of the action.
    If the action is one to foreclose a mortgage, this includes not only the duty of representing the incompetent defendant up to the time of the judgment of foreclosure and sale, but also of representing the incompetent in proceedings for the distribution of any surplus realized upon the sale.
    If the order directing the delivery of the summons to the third person does not, in terms, empower him to represent the incompetent in the surplus-money proceedings, the court, upon the commencement of such proceedings, may amend the order so as to confer such power on the person appointed, or it may treat the surplus-money proceedings as a new and independent proceeding, and, by virtue of the inherent power vested in it, designate the same or another person to. appear and protect the interests of the incompetent in the surplus-money proceedings.
    Appeal by the defendant, William 0. Dewey, as next relative to Ella- F. Dewey, one of the defendants in the action, 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 25th day of May, 1905, denying the appellant’s motion for an order appointing a proper- person to appear in this action for the purpose of protecting thé interests of said defendant Ella F. Dewey, an alleged insane person, upon a reference in surplus-money proceedings.
    This action was brought to foreclose a mortgage and has resulted in a surplus amounting to between $45,000 and $50,000. The property was formerly owned by William C. Dewey, who conveyed It to the New England Realty Company in October, 1903. It appears that the defendant Ella F. Dewey, his wife, was then and is now insane and confined in ■ an asylum without this State'; that she has never been judicially declared insane in proceedings instituted for that purpose, and no committee of her person or estate has as yet been appointed. Dewey, at the time of the conveyance, signed his wife’s name to the deed, acting under wliat purported to be a power of attorney executed by her in April, 1903. It was within a few weeks after this alleged power of attorney was executed by her, and over five months before it was exercised by the husband,' that she became violently insane and was placed in the asylum, where she has since remained except during a short interval when she was brought to the city of New York and personally served with the summons in this action.
    Upon an affidavit showing that there was reasonable ground to believe that she was mentally incapable of protecting her rights, although not judicially declared to be incompetent, the plaintiff procured an order requiring a copy of the summons to be served on her and also delivered on her behalf to one Thomas F. Keating. Mrs. Dewey has not appeared in the action, and there is a question as to whether or not her inchoate dower right in the surplus fund has ever been legally released, and to the end that' whatever interest she might have therein should be properly protected, her husband made this application for the appointment of a proper person to appear for her upon the reference in the surplus proceedings, which motion was denied, and' from the order denying it this appeal is taken.
    
      Paul M. Crandell, for the appellant.
    
      Charles P. Howland, for the respondent New York Trust Company.
   O’Brien, P. J.:

The view entertained by the learned judge at Special Term was that the court had no power to grant the application. It must be conceded, in view of the wife’s relation to the property out of which the surplus fund has grown, and the fact that she appears to be mentally incapable of protecting her own interest, that if the power exists it should be exercised in the appointment of a guardian or some suitable person to protect her interest in the surplus realized after a sale of the property under a judgment of foreclosure.

In approaching this question of the power of the court we should •keep in mind that the Court of Chancery was clothed by statute with the care and custody of infants, idiots and lunatics (2 R. S. 52, § 1), and that the power formerly exercised by that court is now vested in the Supreme Court. (Hunter v. Hatfield, 12 Hun, 382; Matter of Blewitt, 131 N. Y. 541.) As said in the latter case: “ The jurisdiction which formerly was vested in the chancellor over the person and estate of lunatics, is now exercised by the Supreme Court. But the Supreme Court exercises the power under the same rules as appertained to and regulated the jurisdiction of the -chancellor, subject to such statutory provisions on the subject as are contained in the Code of Procedure.”

Referring to the Code of Civil Procedure we find that section 427 .provides: “If the defendant is an infant of the age of fourteen years, or upwards, or if the court has, in its opinion, reasonable ground to believe, that the defendant, by reason of habitual drunkenness, or for any other cause, is mentally incapable adequately to protect his rights, although not judicially declared to be. incompetent to manage his affairs, the court may, in its discretion, with or without an application therefor, and in the defendants interest, make an order, requiring a copy of the summons to be also delivered, in behalf of the defendant, to a person designated in the order, and that service of - the summons shall not be deemed complete, until it is so delivered.”

In Behlen v. Behlen (73 App. Div. 143), where a guardian ad litem was appointed for an insane defendant who had interposed an answer, this court held that whilst such guardian was not entitled to be. made a party, he was, however, entitled under the provisions of section's 427 and 428 of the Code of Civil Procedure to notice ófall further proceedings in the action and, to the extent that it might he advisable and proper, to intervene therein and “ conduct the defence for the incompetent defendant.”

In the nature' of things it was impossible for the Legislature to meet every condition that might arise as affecting the person or property of incompetents, whether judicially declared' insane or not; but it does not follow, because we cannot' find express provision in the Code of Civil Procedure conferring the power or regulating the mode or manner of exercising it to protect the interest of lunatics and incompetents, that, therefore, the court, lacks the power to protect such persons in some adequate manner. It has been repeatedly held, that the power exists in the court, ancl where there are provisions in the Code of Civil Procedure describing the way in which this power shall be exercised, those provisions must be complied with and followed ; but where there is an absence of provisions regulating the exercise- of. the power, then it becomes the duty of the court to determine the mode or manner in which the power can be best exercised to effect the end desired. ■ In other Words, the power is inherent in the court and is not conferred by the Code of Civil Procedure, but. the latter in many instances merely prescribes when and liów it shall be invoked.

■ Examining the authorities with this in mind we find that while the designation or appellation of the one selected to represent, the incompetent differs, still the end to be reached is the same,, namely, the protection of the interest of the incompetent. Thus, in Hanley v. Brennan (19 Abb. N. C. 186) it was held that the City Court of New York.has power, aside from any provision of the Code of Civil Procedure, to appoint a guardian ad litem for a lunatic defendant upon the plaintiff’s application, although he was. of full age, had not been judicially declared insane, and no committee of his person or estate had been appointed. As therein said: “We do not find any express provision of the Code especially applicable to such a case, but we do' find authorities which assert the existence of the power and approve of its exercise.” And in O'Brien v. O'Brien (2 N. Y. Anno. Cas. 117; 38 N. Y. Supp. 157), a Special Term decision by the late Judge Beek-Man, it was held that: “ As there is' no- provision of law for the appointment of a special guardian ad litem of a defendant who is a lunatic, but who has never been judicially declared to be so, the proper method of bringing such a defendant before the court is by an application for an order designating some person upon whom a copy of the summons shall be served in addition to service upon such lunatic, under Code Civ. Pro. § 427.”

The distinction to be noted in these two cases, which are but exemplars of others that might be referred to, is that whilst the appointment of some one to look after the interests of the incompetent was upheld, he was designated in one case as a guardian ad litem and in the other merely as a “ person ” upon whom the summons could be served. By whatever term he is designated, if one so selected,: as intimated by the learned judge at Special Term, had no further duty devolving upon him than to receive the summons so that in plaintiff’s interest the court could acquire jurisdiction over the incompetent, then clearly so far as being of any advantage in protecting the interests of the incompetent, the designation would be useless. In adopting this view the learned judge overlooked the express language of section 427 of the Code of Civil Procedure which provides that the court “ may * * * in the defendant’s interest make an order ” designating the person upon whom the service is to be made.

Nor do we think that merely receiving the summons is all that the person designated to represent a defendant who has substantial interests in the controversy and who is non compos mentis, but who has not been judicially declared insane, is required to do. We think the provisions in the order should be sufficiently broad to enable him to look after the interests of such defendant at every stage of the action. In a foreclosure suit this includes not only the duty of representing the incompetent up to the time of the judgment in foreclosure and sale, but also interests tlie incompetent may have in the surplus realized after a sale. As said in Behlen v. Behlen (supra) : “ That some competent person should be apprised of all matters in the litigation affecting the interests of the defendant, and that such interests should be protected was the very purpose of appointing the guardian ad litem.” ■ It was there held that the order should be so far modified as to give the guardian the right to look after.the interests of the alleged incompetent defendant.”'

When the present application was made to the Special Term in the interest of the incompetent there were two courses which might have been followed, one to amend the original order appointing Tilomas E. Keating, so as to give him the additional right to appear in the surplus proceeding and protect the interests of the incompetent, or the court could regard the surplus proceeding as a new and independent proceeding in the action, and therein, by virtue of the inherent power vested in the court, it could make a designation of the same or another person, who would have the right to appear and protect the interests of the incompetent upon the reference ordered to determine as to the persons entitled to the surplus fund.

The order should accordingly be reversed, with ten dollars costs and disbursements, and with leave to renew the application at Special Term on papers that shall .include a copy of the original order appointing Keating.

Patterson, Ingraham, McLaughlin and Hatch, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, with ■ leave to renew application at Special Term on papers that shall include copy of original order appointing Keating. 
      
      
        Sic. This is evidently intended for the Code of Civil Procedure.— [Rep.
     