#### Frank J. Dupignac, as Committee, etc., Respondent, *v.*August Quick, Appellant.

(Supreme Court, Appellate Term.

May, 1899.)

Incompetent persons — Committee may sue on lost note payable to lunatic — Indemnity.

A committee of a lunatic may, in bis representative capacity, - maintain an action ón a note payable to the lunatic although the committee knew that the note had been lost and never found it after diligent search; and it is not necessary that he offer, under section 1917 of the Code of Civil Procedure, indemnity to the maker before *501action brought, as that offer may be made in the first instance at the trial. .

Dupignac v. Quick, 26 Misc. Rep. 872, affirmed.

Appeal from a judgment of the General Term of the City Court, affirming a judgment of the City Court, rendered in favor of the plaintiff, 'and against the defendant, .‘after a trial by jury.

Loftus *&*Caffrey (Patrick H. Loftus, of counsel), for appellant.

Henry B. Culver, for respondent.

Freedman, P. J.

The plaintiff brings this action as the committee of the estate of one Frederick Duhrkop, adjudged a lunatic, to recover the amount of a promissory note for .$1,000, made by the defendant- and delivered to said .Duhrkop, .January 22, 1898, payable ■ two months after date to the order of Diihrkop. There • is .no dispute as to the facts in the Cáse. The answer -admits the making of the note in question, and that it has not been paid. It was-urged by.the appellant upon the argument and in his brief, that, the plaintiff “ failed to show that he .ever became the- owner of the note* or that he -had any title to the' note.” The plaintiff-brings this action in a representative capacity. By section 2340 of the Code of. Civil Procedure, it is provided that a committee of the property of an incompetent may maintain any action * * * which the person, with respect to whom he-is appointed, might have maintained, if the appointment had not been made.

.While the plaintiff does not possess the note itself and never possessed it, yet he is, by the provisions of that section, empowered to pursue the remedy, and it is the remedy he is enforcing in this case. In his note to this section, Mr. Throo.p says, *“*That it is the provision of the act of 1874 amended, so as to embrace all cases where a remedy is pursued.” ■ The test is, could the lunatic have maintained the action if -the committee had not been appointed? Koepke v. Bradley, 3 App. Div. 391-394.

It was shown upon the trial that the plaintiff had been the attorney for the lunatic (Duhrkop) for a number of years prior to, and was such attorney at the time, he (Duhrkop) was adjudged in- ' competent to manage his affairs. That Duhrkop was a guest at -the hotel of the defendant, and had loaned defendant the sum of $1,000 . in January, 1898; that the note was seen in the actual possession of Duhrkop about the 18th day of March, 1898; that plaintiff *502was appointed a committee of his estate and duly qualified as such April 25, 1898, and that he had made diligent search for the note and had been unable to find it.

It further appears that upon the trial of this action the plaintiff tendered to the defendant a bond of indemnity, under section 1917 of the Code of Civil Procedure,, which bond was thereupon approved by the trial judge.

• It is true, as appears by the testimony, that the plaintiff knew at the time he brought this action that the note was lost. It also appears that the defendant was informed by the plaintiff while he (plaintiff) was acting as attorney for Duhrkop, and at about the time the proceedings in lunacy were commenced, that the note was lost, and that the" defendant was written" to by the plaintiff regarding the note, after he (plaintiff) was appointed the committee of the estate of Duhrkop, so that defendant could have .demanded the production of the note, or a bond of" indemnity, and thus have avoided payment of a bill of costs, had he so desired. In Read v. Marine Bank, 136 N. Y. 454-462, it.was said, that by the provisions of section 1917 of the Code of Civil Procedure, a bond is not required as a condition precedent to the right to bring suit, and that if it appears *upon the trial,*that the instrument is lost, the plaintiff may'still recover upon executing the required undertaking to be approved by the trial judge. . It thus; appears that all the rights of the defendant have been amply protected and that, the plaintiff" has fully complied with the requirements of the statute. Judgment should be affirmed, with costs to respondent.

" MacLean and Leventritt, JJ., concur.

• Judgment affirmed, with costs to respondent.