Dean v. Halliburton

213 A.D. 831

Opinion

Order affirmed, with ten dollars costs and disbursements. This action was brought without permission of the court after the defendant Halliburton had been judicially declared incompetent by the court in North Carolina, and a committee of his property appointed in New York. The action was unauthorized and contrary to law, and might be restrained or the summons set aside upon motion, if the omission was brought to the attention of the court. This omission, under the circumstances, cannot be waived by the committee, as they were not properly before the court. The direction or consent of the trial court that the committee be substituted as defendants in place of Halliburton, and that the trial should proceed, although done at the request of the committee, cannot be construed as authority to begin the action. We think the action in the present ease was unauthorized and unlawful, and that the committee at the time the stipulation was made was not properly before the court and had no power to make it. (Smith v. Keteltas, 27 App. Div. 279; Grant v. Humbert, 114 id. 462; Matter of Delahunty, 28 Abb. N. C. 245; Pogue v. Todd, 111 Misc. 296; Soverhill v. Dickson, 5 How. Pr. 109; Matter of Ricker, 89 Misc. 582.) Kelly, P. J., Jaycox, Kelby and Young, JJ., concur; Rich, J., absent and not voting.