
    Charles F. Callahan, an Infant, by James Callahan, his Guardian ad Litem, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    
      Action by the guardian ad litem of an insane plaintiff—substitution of a committee subsequently appointed—• the oi'der should not be made nunc pro tunc — it should not permit the complaint to be amended further than to show the appointment of the committee and the order of substitution.
    
    December 10, 1908, on the petition of Charles F. Callahan, an infant who had sustained personal injuries through the alleged negligence of the New York Central Railroad Company, and who, on November 12, 1903, had been committed to an insane asylum by an order of a county judge upon the certificate of two medical examiners in lunacy, his father, James Callahan, was appointed ■ guardian ad litem for the purpose of commencing an action against the New York Central Railroad Company to recover damages for such personal injuries.
    December 11, 1903, said action was commenced in the name of Charles F. Callahan by James Callahan, his guardian ad litem. March 31, 1904, the railroad company served an amended answer in the action, alleging that the plaintiff did not have legal capacity to sue, for the reason that, prior to the granting of the order appointing the guardian ad litem and prior to the commencement of the action, the plaintiff had been adjudged to be insane. April 23,1904, James Callahan was appointed committee of the person and estate of said Charles F. Callahan.
    
      Held, that the action was properly commenced by the guardian ad litem on behalf of the infant and that, a committee of his property having been subsequently appointed, the court might properly order the substitution of such committee as the party plaintiff in place and on behalf of the infant by his guardian ad litem;
    
    
      ■ That there was no reason why the order providing for such substitution should direct that the committee’s appointment should be made nunc pro tuna as of the time of the commencement of the action, and that the order should, therefore, not contain such a provision;
    That such order should not permit the plaintiff to amend his complaint generally, but only to amend his complaint by showing the appointment of the committee of the person and estate of the infant and the granting of the order of substitution.
    Appeal by the defendant, The New York Central and Hudson River Railroad Company, from an order of the Supreme Court, made at the Columbia Special Term and entered in the office of the clerk of the county of Columbia on the 10th day of June, 1904, appointing James Callahan committee of the person and estate of Charles F. Callahan, an incompetent person, and substituting the said committee as plaintiff in this action.
    On the 13th day of December, 1902, Charles F. Callahan, who was then about fifteen years of age, was in the employ of the defendant. He fell into a pit in one of the defendant’s roundhouses and was injured. It is alleged that the injury was caused by the negligence of the defendant. On the 12th day of November, 1903, he was committed to the Hudson River State Hospital by an order of the Columbia county judge upon the certificate of two medical examiners in lunacy. On the 10th day of December, 1903, at Special Term, on the petition of said Charles F. Callahan, J ames Callahan, the father of said Charles F. Callahan, was appointed guardian ad Utern of said Charles F. Callahan for the purposes of this action. This action was commenced in the name of Charles F. Callahan, an infant, by James Callahan, his guardian ad litem, on the 11th day of December, 1903. On the 31st day of March, 1904, the defendant served its amended answer, in which it alleged, among other things, that the plaintiff had no legal capacity to sue, for the reason that prior to the granting of the order appointing J ames Callahan a guardian ad litem, and prior to the commencement of the action, plaintiff was adjudged insane.
    On the 23d day of April, 1904, on the application of the superintendent of said hospital, the Special Term appointed said James Callahan committee of the person and estate of said Charles F. Callahan. On an affidavit setting forth said facts a motion was made at Special Term for an order joining said James Callahan as committee of the person and estate of said Charles. F. Callahan, an incompetent person, with said James Callahan as guardian ad litem of said Charles F. Callahan, an infant, as parties plaintiff in the action and for time thereafter to amend the plaintiff’s pleading accordingly. The court granted an order “ That for the purposes of this action the appointment of the said James Callahan as committee of the person and estate of Charles F. Callahan, an incompetent person, be made nune pro tune as of the time of the commencement of this action ; and it is further ordered that James Callahan, as committee of the person and estate of Charles F. Callahan, an incompetent person, be substituted as plaintiff in the above-entitled action, and that as thus amended the said action be continued and maintained in the name of said James Callahan as committee of the person and estate of Charles F. Callahan, an incompetent person, plaintiff; and that said plaintiff may have twenty days’ additional time from the 4th day of June, 1904, wherein to make and serve an amended complaint herein or otherwise to proceed herein as he may be advised.” ■ From such order this appeal is taken.
    
      Robert Wilkinson, for the appellant.
    
      John C. Dardess, for the respondent.
   Chase, J.:

The courts are always ready to protect the person and property of infants and persons of unsound mind. When a person is incapable qf representing himself,_ either as a plaintiff or d.efqnd.ant in. an auction or special proceeding by reason of his infancy, it has long been the practice to allow a next friend or guardian to represent such person in such action or proceeding, and the judgment or order obtained in an action or special proceeding so conducted is binding upon such infant. Notwithstanding the appointment of a next friend or guardian to represent such person, it remains the duty of the court to protect his interest. ' In this State it is expressly provided by statute that “ before a summons is issued in the name of an infant plaintiff a competent and responsible person must be appointed to appear as his guardian, for the purpose of the action, who shall be responsible for the costs thereof * * *.” (Code Civ. Proc. § 469.) But the statute also expressly provides: “ Where an infant has a right of action he is entitled to maintain an action thereon, and the same shall not be deferred or delayed on account of his infancy.” (Code Civ. Proc. § 468.)

Even under our statute the omission to appoint a guardian ad litem for an infant plaintiff before bringing an action is not a jurisdictional defect, but an irregularity that can be corrected by an appointment nune pro tumo. (Rima v. Rossie Iron Works, 120 N. Y. 433. It has been held that an action may be maintained in the name of an infant although commenced without his knowledge or consent. (Fulton v. Rosevelt, 1 Paige, 178.)

In Hill v. Water Commissioners of Watkins (77 Hun, 491), where it appeared upon the trial that the guardian ad litem, as named, had not been duly appointed, an application was made by the counsel for the plaintiffs for the appointment of a guardian ad litem and for his substitution in the place of the person who had commenced the action as guardian ad litem and the application was granted and another person was appointed and the pleadings were amended in conformity with such appointment. The court say that such order was authorized under the rule laid down in Rima v. Rossie Iron Works (supra).

If Charles F. Callahan was injured, as stated in the complaint, through the negligence of the defendant, the commencement of the action was clearly in his interest and for his benefit. It also appears from the record that at the time the action was commenced it was very desirable that there should not be. any further delay in. commencing the same..

When a person has been duly adjudged to be incompetent to care for his property, and a committee of his property has been duly appointed and qualified, such committee may maintain any action which the incompetent might have maintained if the appointment had not been made. The language of the statute relating thereto is as follows: A committee of the property, appointed as prescribed in this title [Code Civ. Proc. chap. 17, tit. 6], may maintain in his own name, adding his official title, any action or special proceeding, which the person, with respect to whom he is appointed, might have maintained, if the appointment had not been made.” (Code Civ. Proc. § 2340.) The insanity of a person does not necessarily delay the enforcement of his property rights or liabilities. A person mentally incapable adequately to protect his rights, although not judicially declared to be incompetent to manage his affairs, may be sued, but the court may in its discretion require by order that a copy of the summons be also delivered in behalf of such defendant to a person designated in the order. (Code Civ. Proc. § 427.)

Said section 2340 and also section 55 of the Code of Civil Procedure impliedly states that a person at any time before he is judicially declared to be incompetent to manage his affairs may maintain an action in his name. The right of a person, an alleged incompetent, but not one who has been judicially declared to be incompetent to manage his affairs, to maintain an action in his own name is declared in Runberg v. Johnson (11 Civ. Proc. Rep. 283), and in Williams v. Empire Woolen Co. (7 App. Div. 345) the court affirmed an order striking out an answer as frivolous, which alleged “ That the plaintiff, James IT. Williams, is now, was at the time this action was commenced, and had been for more than a year last past of unsound mind, and totally and utterly incapable of understanding or transacting any business whatever, and is utterly incapable of maintaining this action, and was so at the time it was brought.”

We are of the opinion that the action was properly commenced on behalf of the infant, and that a committee of his property having since been appointed, the order substituting such committee as the party plaintiff in place and on behalf of the infant by his guardian was right. We do not from the record find any reason for providing in the order that the appointment of the committee for the purposes of the action should be made nune pro tuno as of the time of the commencement of this action, or for allowing the plaintiff generally to amend his complaint. An order permitting a defendant to amend a pleading as he shall be advised should seldom, if ever, be allowed. (See New v. Aland, 62 How. Pr. 185.)

The order appealed from should be modified by striking out that part thereof providing “ That for the purposes of this action the appointment of the said James Callahan as committee of the person and estate of Charles F. Callahan, an incompetent person, be made nrnic pro tuno as of the time of the commencement of this action; and it is further ordered,” and by adding to said order the words, “ The amendment of the plaintiff’s complaint under this order shall be restricted to adding provisions therein showing the appointment of the committee of the person and estate of Charles F. Callahan, and the granting of this order relating thereto,” and as so modified affirmed, without costs to either party.

All concurred.

Order appealed from modified by striking out that part thereof providing “ That for the purposes of this action the appointment of the said James Callahan as committee of the person and estate of Charles F. Callahan, an incompetent person, be made nunc pro tuno as of the time of the commencement of this action; and it is further ordered,” and by adding to said order the words, “ The amendment of the plaintiff’s complaint under this order shall be restricted to adding provisions therein showing the appointment of the committee of the person and estate of Charles F. Callahan, and the granting of this order relating thereto,” and as so modified affirmed, without costs to either party.  