#### Clara Feigenbaum, as Committee, Etc., of Louis I. Feigenbaum, a Lunatic, Appellant, *v.*William F. Howe et al., Respondents.

(Supreme Court, Appellate Term,

October, 1900.)

Incompetent person — Recovery, by committee, of a deposit made by a lunatic with attorneys who rendered him no services for it.

The committee of a lunatic may recover a deposit, made by the latter before he had been judicially declared insane, with attorneys in order to have them procure him a divorce from his wife where the attorneys, although acting in good faith and unaware of his lunacy, have not, before rescission of the contract by the committee, served the summons and complaint in the divorce action although they have prepared them, as such preparation, without service of the papers, is of no benefit to the lunatic.

Appeal from a judgment rendered in favor of the defendants in the Municipal Court of the city of New York, fifth district, borough of Manhattan. Action by the committee of a lunatic to recover moneys, had and received of the lunatic, by attorneys who were to bring for him an action of divorce.

Benno Loewy, for appellant.

Nathaniel Cohen, for respondents.

*Per Curiam.*

There can be no doubt of the fact that at the time the alleged contract was made between Feigenbaum and the defendants, the former was insane and incompetent to enter into any such agreement. A contract made with a person who is insane at the time, although not so judicially declared, is voidable; but where the one dealing with such person has acted in good faith, *515without any knowledge or reason to believe that the latter is insane, has parted with value upon the faith of the agreement or has performed acts which were beneficial to said lunatic, or bis estate, he is entitled to the advantages which he has obtained under the agreement, where the same is a just and fair one, if he cannot be restored to the position which he occupied before his dealings with the lunatic were had. Mutual Life Ins. Co. v. Hunt, 79 N. Y. 541; Hicks v. Marshall, 8 Hun, 327; Riggs v. American Tract Society, 84 N. Y. 330, 337.

In the case at bar the plaintiff’s ward, before he had been judicially declared to be incompetent, made an arrangement with the defendants, under which the latter were to institute an action for divorce against his wife, and paid to them in advance. on account of such litigation so to be undertaken by them the sum of $110. The fact that Eeigenbaum was at that time insane is established in the case beyond any possible doubt, and it also appears that Ms insanity rested; in part at least, upon delusions with respect to the fidelity of his wife. It also appears that the defendants were entirely ignorant of his mental condition, and made the arrangement that they did in entire good faith. It does not appear, however, that anything was done by them with respect to the commencement of the action. It is true that they prepared a summons and complaint, but the same was never served, and the action was never instituted.

It is thus apparent that no benefit or advantage was received by the lunatic in exchange for the money, which had been thus paid by him. The payment was made upon an agreement by the defendants to bring suit. The mere drawing of the summons and complaint was not the bringing of the suit, but only a preliminary step of no possible use or advantage to the plaintiff, unless followed by commencement and prosecution of the action. We think, therefore, that the plaintiff, having rescinded the contract, has made out a cause of action as for money had and received against the defendants for the recovery of said sum of $110, and that the judgment rendered by the court below dismissing the complaint was erroneous and must be reversed.

Present: Beekman, P. J., Giegerich and O’Gorman, JJ.

Judgment reversed and new trial ordered, with costs to appellant to abide event.