
    Madison Grant, Appellant, v. Arthur C. Humbert, Respondent.
    First Department,
    July 12, 1906.
    Incompetent person — right of creditors to sue before inquisition found — effect of appointment of committee on pending suit v- power of court and proper practice stated.
    An order permitting service of a summons on one confined in a State hospital for the insane does not constitute a leave of the court to bring an action.
    But such leave of court to sue an incompetent person is not necessary unless he has been judicially declared insane and a committee appointed. In the latter case the court takes possession of the property of the' incompetent through its committee and neither the incompetent nor the committee can then be sued without leave of court. In the absence of such leave an action may he enjoined, a summons set aside, or a plaintiff punished for contempt. On the contrary, the court may authorize a suit in order to liquidate a claim against the incompetent even though a committee has been appointed, but the plaintiff obtains no lien prior to other creditors as he has no right to execution.
    The established procedure for the enforcement of claims against an incompetent person for whom a committee has been appointed is to petition the court for the allowance and payment of the claim, or, in the alternative, for leave to sue thereon.
    The court having possession of the property of an incompetent through the appointment of a committee will distribute the property among creditors fro rata without preference save when a party has acquired a prior lien by contract, attachment or execution, etc.
    If an action be commenced against an'incompetent not judicially declared insane, on the subsequent appointment of a committee the court may enjoin the action or grant leave for its continuance. The court will not .be concluded by the fact that the committee has served an answer, as a committee cannot maintain an action without leave of court.
    Appeal by the plaintiff, Madison Grant, 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 22d day of March, 1906, enjoining the plaintiff from proceeding with the prosecution of this action.
    
      William W. Niles, for the appellant.
    
      Manfred W. Ehrich, for the respondent.
   Laughlin, J. :

The action is brought on a promissory note for 81,500, due on the 24th day of March, 1900, alleged to have been made by the defendant, payable to the order of the plaintiff.

At the time of the commencement of the action the defendant was an inmate of Bloomingdale Asylum, but no committee of his person or property had been appointed. Before commencing the action an application was made in behalf of the plaintiff to one of the justices of the Supreme Court, evidently with a view to complying with the regulation of the State Lunacy Commission precluding service on an inmate of a State hospital for the insane without an order of a judge of a court of record for leave to serve the defendant. Leave was granted and service was made upon the 25th day of November, 1905. On the eighth day of December thereafter, by an order of the Supreme Court, the defendant was duly adjudged incompetent, and Susan Humbert was duly appointed comznittee of his person and property. She qualified, and a commission was duly issued to her on the twelfth day of Decembei1. On the thirteenth, day of December Messrs. Bowers and Sands, attorneys, served a formal notice of appearance, stating that the defendant, “an incompetent pez-son, by Susan Humbert, committee of his pez-son and property,” appeared in the action; and thereafter the defendant, by his committee, served an answer setting forth that he had been judicially declared incompetent and the appointmezit of the committee, and puttizig in issue all of the allegations of the complaint, and setting up as a separate defezzse that the note was made without consideration. Before appearing, the committee verified a petition for leave to be made a party to the action, and requested the attorneys for the plaintiff to stipulate that an order to that effect might be entered; but the request was withdrawn before the consent was gz-anted, azzd a znotion for a stay of tlie prosecution of the action was thereupon made.

If leave of the court to bring the action was necessary, I -think the order permitting service of the summons cannot be construed as such leave. It was not so intended, and it was not made by the court.

The theory urged by the respondent to sustain the order is that the action cannot be maintained without leave of the court. That contention is not sustained by the authorities. Iucoinpeteney neither suspends the running of the Statute of Limitations on claims against the incompetent (Sanford v. Sanford, 62 N. Y. 553) nor does it deprive the court of jurisdiction or bar a claimant from instituting an action or proceeding against an incompetent person and prosecuting the same to judgment and enforcing satisfaction thereof by execution.' (Crippen v. Culver, 13 Barb. 424; Sternbergh v. Schoolcraft, 2 id. 153; Clarke v. Dunham, 4 Den. 262; Robertson v. Lain, 19 Wend. 649; Matter of Heller, 3 Paige, 199; Matter of Hopper, 5 id. 489; Noe v. Gibson, 7 id. 513; Prentiss v. Cornell, 31 Hun, 167; affd., 96 N. Y. 665 ; Williams v. Empire Woolen Co., 7 App. Div. 345; L'Amoureux v. Crosby, 2 Paige, 422; Carter v. Burrall, 80 App. Div. 395.) If the action had not been commenced until after the inquisition and the appointment of the committee, the service of the summons upon the defendant or his committee without leave of the court might have been set aside by the court (Smith v. Keteltas, 27 App. Div. 279), or the prosecution of the action enjoined (Matter of Delahunty, 28 Abb. N. C. 245); and the plaintiff would also be subject to punishment for contempt,^because although the title to the property remains in the lunatic, the court, by the committee, takes unto itself the custody, care and management of the property for the purpose of preserving it from waste or destruction, and providing for the payment of his debts and the maintenance of himself and family, and the education of his children, and it will brook no interference with the property or with the committee, who is its officer or bailiff. (Matter of Hopper, 5 Paige, 489 ; Soverhill v. Dickson, 5 How. Pr. 109 ; Code Civ. Proc. § 2321; Matter of Otis, 101 N. Y. 580; Kent v. West, 16 App. Div. 496; affd., 154 N. Y. 749; People ex rel. Smith v. Comrs. of Taxes, etc., 100 id. 215; Pharis v. Gere, 110 id. 336; Carter v. Beckwith, 128 id. 312; Crippen v. Culver, supra.) The court, which by its 'committee takes possession of the property of the incompetent person, is clothed with full authority to pay all just claims against the incompetent to the extent of his estate, and to determine the validity of claims by reference, if the facts are disputed. This summary remedy is favored by the courts, and is ' adopted in all cases unless some special facts or circumstances exist which render it necessary or appropriate that the claimant should be permitted by the court to maintain an action for the purpose of having his claim or the extent thereof adjudged. (Kent v. West, 33 App. Div. 112; Williams v. Estate of Cameron, 26 Barb. 172; Matter of Heller, supra ; Matter of Hopper, 5 Paige, 489; Niblo v. Harrison, 9 Bosw. 668.)

The established practice with respect to the enforcement of claims against an incompetent person for whom a committee has been appointed, is to present a petition to the court, praying that the claim be allowed and paid, or, in the alternative, that leave be granted to sue thereon. (Matter of Hopper, supra ; L'Amoureux v. Crosby, supra ; Williams v. Estate of Cameron, supra ; Matter of Delahunty, supra; Matter of Wing, 83 Hun, 284.)

Where the estate of an incompetent is insufficient to pay the claims in full, the court applies his property in payment thereof pro rata, without preference, excepting where prior to the adjudication of incompetency and appointment of the committee, the creditor has in good faith obtained a lien or acquired a right of property by contract or otherwise, as in Carter v. Burrall (supra), where a warrant of attachment had been duly issued and levied, and in Matter of Hopper (supra), where a judgment had been recovered and an execution issued and levied, and where there is a mortgage lien and analogous cases. In the case at bar, however, the plaintiff had acquired no lien or right to priority in the payment of his claim at the time the defendant was adjudged incompetent. He had merely duly commenced an action at law. In Matter of Winy (supra) it was held that even a judgment creditor of a lunatic, where execution has not issued before the inquisition, acquires no lien on his personal property. This being an action at law, and it having been duly commenced prior to the appointment of the committee, it need not necessarily be stayed until the discharge of the committee or until the further order of the court, but may properly be prosecuted to judgment to enable the plaintiff to have his claim liquidated before applying to the court to have it paid by the committee. (Niblo v. Harrison, supra.)

A judgment, if recovered, can only be enforced by application to the court. It is the duty of the committee to defend (Behlen v. Behlen, 73 App. Div. 143; Americcm Mortgage Co. v. Dewey, 106 id. 389); and although the judgment would not he enforcible by execution while the estate is in the custody of the court,' it would he at once enforcible should the lunatic recover and the committee he discharged. Although the action has been duly brought, probably it could not, with knowledge of inquisition found, be continued without subjecting the plaintiff, not only to the injunction order of the court, but to punishment for contempt as well. The appellant contends that, the committee having appeared and answered for the defendant,' and the case having been placed upon the calendar, the committee should now be deemed to have waived any objection to the failure of the plaintiff to obtain leave of the court for the continuance of the action. The difficulty with this contention is that the committee has only such authority as is conferred by statute or by order of the court. It has been held that the substitution of the committee as a defendant in place of the incompetent does not debar the committee from contending that the action cannot be maintained without leave of the court. (Matter of Delahunty, supra.) In the present action it does not appear whether the committee voluntarily defended, or whether the answer was interposed by direction of the court.

It is further urged that the application for the stay was not made until within a few days of the expiration of the Statute of Limitations, and that if the order should be affirmed and leave of the court to sue should be obtained, the Statute of Limitations will have run against the claim, for the reason that the leave cannot he granted nunc pro tunc. (Matter of Delahunty, supra,.) The plaintiff has nothing to fear in this regard. His action has been properly commenced. If he needs any authority, it is only authority to continue it, which may, if the facts and circumstances warrant it, be granted before the discharge of the committee, but if leave should not be granted and the claim should not be paid in full, the plaintiff would be at liberty, after the discharge of the committee, to continue his action for any unpaid balance, and thus his right in due time to obtain" a judgment upon his cause of action could be preserved. We are of opinion, however, that leave to continue the action to judgment should be granted. It was competent for the court on the motion for a stay to have denied the stay and granted leave to the plaintiff to prosecute his action to judgment; and this, we think, should have been done.

It follows that the order should be reversed and leave granted to plaintiff to prosecute his action to final judgment, but without costs.

O’Brien, P. J., Patterson, McLaughlin and Clarke, JJ., concurred.

Order reversed and leave granted to plaintiff to prosecute action to final judgment, but without costs. Settle order on notice.  