#### Nils A. Rumberg, Resp’t, *v.*John Johnson, as treasurer, etc, Appl’t,

*(City Court of Brooklyn, General Term,*

*Filed December*27, 1886.)

Lunatics — Power to employ attorney — Code Oiv. Pro., § 2340.

The defendant sought to reverse the judgment in an action on the .ground that as the plaintiff was insane at the time of the commencement of the action, he was incompetent to employ an attorney, and the attorney was therefore without authority to appear for him. The plaintiff had not been judicially determined to he a lunatic in any proceeding brought for that purpose, but was confined in an asylum and pronounced by the physicians there to be incurably insane. *Held,*that the right to commence an action in the name of a person of unsound mind before he has been judicially declared to *861be such is implied by Code Civ. Pro., § 2340. That a lunatic has the legal standing to appear as a party in his own name until a committee has been appointed in the manner provided by law. (Clement, J., *dissenting.)*

Appeal from a judgment entered at special term in favor of plaintiff. Facts will be found in the dissenting opinion of CLEMENT, J.

*J. Edward*iSwanstrom, for resp’t; *Leeds*Morse, for appl’t.

Reynolds, J.

The issues really litigated upon the trial were first, whether the plaintiff had become sick and disabled from following his usual business, as alleged in the fourth paragraph of his complaint, the same being denied by the defendant; and second, whether the plaintiff had discharged and released his claim subsequent to the commencement of the action.

The court finds that the plaintiff in August, 1883, became and still continued sick, “insane and disabled from following his usual business or other occupation,” and that the release purporting to be executed by him, was procured from him after the commencement of the action “ and while the plaintiff was *non compos*mentis.”

The evidence abundantly sustains the first finding, at least to the extent that the plaintiff was, during the time for which he claimed benefits, “ disabled by sickness or other disability from following his usual business, pursuit or other occupation,” in the language of the by-law set out in the complaint; and it also sustains the finding as to the release, and thus avoids the effect which it would otherwise have had.

The defendant now seeks to reverse the judgment on the ground that, as it appears the plaintiff was insane at the time of the commencement of the action, he was incompetent to employ an attorney, and the attorney was therefore without authority to appear for him.

I originally concurred, not without doubt, in the forcible opinion written by Judge Clement to show that this was a fatal objection to the judgment; but on further reflection, since the reargument, I have come to a contrary conclusion.

The plaintiff has not been judicially determined to'be a lunatic on any proceeding brought for that purpose. The finding of the court that he was *non compos*when he executed the release, has no effect beyond setting aside that instrument. The other finding (which covers the time of the commencement of the action) that he was “ insane and disabled from following his usual business or other occupation,” is material only so far as to bring him within the -scope of the by-law above referred to, viz; to show that he was “ disabled from following his usual business, pursuit, or other occupation.” It is not clear that the court meant more than this by the use of the word “ insane ” in the connection in which it is used. His mind was so far unsound *862.as to incapacitate him from pursuing bis business (tbat of an ■upholsterer), but until “after office found” the presumption must still prevail that the attorney who appears in his name has competent authority. Besides the issues made by the pleadings having been rightly decided in favor of the plaintiff, even if there has been an irregularity, such as is claimed, how can it be corrected on an appeal from the judgment?

The judgment correctly declares the rights and liabilities of the parties. If the attorney appeared without proper authority, that error should have been reached by a direct motion for the interposition of the court.

I do not see that the decision of this court in *Valentine*v. *Richardt,*is in point here. In that case a person, without notice to the nominal plaintiff, and in fact in open hostility to her, had procured an order appointing him her next friend, for the purpose of commencing an action to set aside a conveyance of real •estate made by her, and the action was brought in her name by him as next friend. We held that such a procedure was unauthorized by any law or practice in this State. That was entirely a different question from the one now presented.

Counsel for the appellant contends that the provisions of the Code of Civil Procedure, section 2320 *et. seq.,*prohibit the bringing of an action in the name of a person who is a lunatic. The first, section declares that the jurisdiction of the court extends to the eustody of the person and the care of the property of a person incompetent to manage himself or his affairs, in consequence of lunacy, idiocy or habitual drunkenness, and section 2322 declares that such jurisdiction must be exercised by means of a committee of the person or property. But until the court interposes its jurisdiction, these provisions do not change the legal status of the persons named in section 2320. Before the court puts forth its arm, it would hardly be claimed that an habitual drunkard cannot employ an attorney and prosecute a suit in his own name. If he may do so, the argument against a suit by a person incompetent from any of the other causes named, fails as far as this statute is concerned. The only regulation as to actions in section 2340, which provides that the committee when appointed may maintain in his own name, as committee, any action which the per•son for whom he is appointed “ might have maintained if the appointment had not been made,” the right to commence an action in the name of a person of unsound mind, before he has .been judicially declared to be such, is implied, rather than taken •away, by tins statute.

It is said that the judgment ought not to stand, because' if the defendant had recovered judgment, it could have been avoided by plaintiff on the ground that his attorney had no authority to commence the action. This seems to be a begging of the question. It assumes one side of the very question under discussion; *863and I think the assumption is wrong. It seems to be settled tbat where the attorney is responsible (and there is no suggestion here to the contrary), the party is bound by the judgment and must seek his remedy against the attorney who appeared without authority. *Brown*v. Nichols, 42 N. Y., 30; *Ferguson*v. *Crawford,*70 N. Y., 254. I can see no reason why a lunatic, before “ office found ” should not be subject to this rule as well as any other person. He has the same legal standing to appear as a party in his own name, till a committee has been appointed in the manner provided by law. The parties litigated upon an equality, and the judgment is binding upon both. With this view of the case I think the judgment should be affirmed.

CLEMENT, J., dissents.

Clement, J.

(dissenting.) — as to the facts of this case I quote from the brief of counsel for plaintiff. “ On September 8th, 1883, he (plaintiff) was conveyed to the insane asylum at Flat-bush, after examination by Doctors Young and Stone, who pronounced him insane. During this period he has been under the care of Dr. Ferris, a physician at the asylum, who testified that the plaintiff’s case is incurable.”

And after stating that the Society had paid the wife the sick benefits coming to plaintiff for some time, I quote again from the brief, “ when they refused to pay her any longer and she was obliged to institute this action, etc.”

In the former opinion in this case I stated that if “ the judgment had been for defendant at special term and the plaintiff after proceedings in lunacy should by his committee bring an action for the same claim, the judgment could be avoided on the ground that the attorney had no authority to commence the action,” and I am still of the same opinion.

While a judgment cannot be attacked collaterally on the ground that the attorney had no authority to appear, yet it has never been held that where the record showed that the attorney had no authority, such a judgment could not be attacked in any proceeding collateral or otherwise.

The authority of the attorney to appear is presumptively good, and such presumptive authority can only be attacked in the action itself. I fail to see how there can be any presumption where the record shows to the contrary. The proof of a fact overcomes any presumption.

The record in this case shows that the plaintiff is an imbecile; the attorney for plaintiff states in his brief that he is incurably insane and the learned judge so found, and that he has been in the same condition since August, 1883.

A person, so far as his property rights are concerned, in law is presumed to be competent unless proceedings are taken against *864him under sections 2320 to 2344 of tbe Code of Civil Procedure and a committee appointed as therein set forth.

Section 2320 provides that “ the jurisdiction of the supreme court extends to the custody of the person, and the care of the property of a person incompetent to manage himself or his affairs, in consequence of lunacy, idiocy or habitual drunkenness.” Section 2321 sets forth that the court “ may preserve his property from waste or destruction ; and out of the proceeds thereof must provide for the payment of his debts and for the safe keeping and maintenance, and the education when required of the incompetent person and his family.

Section 2322 provides that the jurisdiction *specified in the last two sections must he exercised*by means of a committee of the person or a committee of the property . . . appointed as prescribed in this title.

I think that the words “ must be exercised ” mean that the jurisdiction can be exercised in no other way and that the English cases cited by plaintiff holding that the wife has a right to sue in the name of her husband, as in this case, have no effect in this State.

The wife of a lunatic can only receive her support from the estate of her husband after a committee is appointed.

A person who brings an action is presumed to be sane until a committee is appointed and this presumption continues during its pendency and until judgment.

If a party brought an action and then gave a discontinuance before the trial, I do not think that his attorney would be allowed to avoid such discontinuance and go on and try the case on the ground that his client was demented andan imbecile and had been for years prior to the commencement of the action.

A plaintiff until he has been adjudged insane is not only presumed to be competent, but it is more than a presumption, it is a fact.

A person can bring an action to set aside an act done when he was of unsound mind, but the action is assumed to be brought during a lucid interval.

Lunatics are assumed to have lucid intervals and may recover; but in this case it is claimed and found as a part of plaintiff’s cause of action and as a ground of setting aside the release that the plaintiff has been demented since August, 1883, and as stated by plaintiff’s counsel in his brief, “ the plaintiff’s case is incurable.”

The plaintiff’s attorney in this action avoids a release given by'the plaintiff after the commencement of this action, not on proof that the plaintiff was insane at the time of giving the release, but on the ground that he lost his understanding in August, 1883, and never can regain the same.

If the plaintiff had been called as a witness for the defendant *865and testified tbat he was sane at the time he gave the release and that he did not want the action to proceed, the facts would not be stronger than as the case stands.

Even if we assume that the plaintiff brought the action and that he is presumed to be sane, and that because the attorney is responsible, his authority cannot be attacked, then I think that it must be assumed that plaintiff had the legal right during the pendency of the action to discontinue the same or to release the cause of action. That under such circumstances, the plaintiff cannot be permitted to discredit himself.

There is an important question involved in this case as it seems to me.

A party is confined in a lunatic asylum for many years and yet until he is adjudged incompetent to manage his property no person can interfere with the same.

Proceedings in lunacy in this State are inexpensive and can be completed in less than twenty days.

Bumberg might not be found to be of unsound mind, so as to be incompetent to manage his property, and in law is not incompetent until a jury has so decided after notice to him.

In two cases which have come before me where applications have been made to declare persons actually confined in an asylum of unsound mind, and to have committees appointed, after a careful investigation it was determined in each case that the parties were not incompetent to manage their property and both were discharged from the asylum and subsequent events have proven that such determinations were right.

If it be held that a plaintiff can be confined and if his wife can litigate in his name and receive the fruits of the litigation, it, in my opinion, tends to establish a principle in the law which should not exist.

In the present case the plaintiff’s wife may be entitled to the money, but she should receive it only in the way provided by the Code; that is, through a. committee.

The principle involved in this case is that the right of a party to do as he sees fit with his own property, is taken from him without a hearing.

For the reasons given in my former opinion and as above stated, I am unable to agree in the opinion filed by the learned chief judge of this court.

The judgment should be reversed and a new trial granted, costs to abide the event; and under the circumstances, I think that the attorney for plaintiff should have leave to discontinue the action if he so elects, without costs.