Kent v. West

44 N.Y.S. 901

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 10, 1897
• Status: Published

Opinion

HARDIN, P. J.

Inasmuch as the Erie county court appointed the appellant committee of Asa K. West, it was competent for that court to grant an order giving leave to the plaintiff “to bring an action * * * in the supreme court of this state against Isaac S. West as committee of the property of Asa K. West, an incompetent person.” In Re Otis, 101 N. Y. 581, 5 N. E. 571, it was stated:

“That the committee had no interest in the property. That his possession was the possession of the court, and his authority that of his agent acting under its direction. * * * The committee thus becomes merely the officer or agent of the court, and has no authority except such as comes from that source, or is vested in him by statute. * * * The committee is but the hand of the court, moving only as moved by the dominant will.”

The same doctrine is approved in Pharis v. Gere, 110 N. Y. 347, 18 N. E. 135. In Taylor v. Baldwin, 14 Abb. Prac. 166, it was held that it was contempt to bring an action against a receiver without leave of the court which appointed him, and such is the practice in respect to actions against a committee of a lunatic. The same practice obtains in respect to other officers holding money in their hands, as' such money is deemed to be in the custody of the court, and no action can be brought against such officer without the permission of the court. Higgins v. Wright, 43 Barb. 462. An action brought without such permission is regarded as a contempt. De Groot v. Jay, 30 Barb. 483. It was said in James v. Cement Co., 8 N. Y. St. Rep. 490, that, although an action be commenced against a receiver without leave, the court acquires jurisdiction of the defendant receiver by the service of the summons. Inasmuch as the order of the Erie county court, which was the court appointing Isaac S. West a committee, authorized an action to be brought against Isaac S. West as committee, we think the court at special term properly denied that branch of the motion which asked to punish the plaintiff for instituting this suit. It is to be kept in mind that the order appealed from, denying the appellant’s motion, was “without prejudice to a motion by the said Isaac S. West, as guardian and as committee of said Asa K. West, in the Erie county court for the same relief.” We think that was a proper disposition to be made of the motion, upon that branch of it.

We think the papers found in the appeal book furnish no adequate reason for granting to the appellant “an order perpetually restraining the prosecution of this action against said Asa K. West.” In Prentiss v. Cornell, 31 Hun, 168, it was said:

“The mental incapacity or incompetency of parties presents no interference with the enforcement of legal liabilities. The institution of legal proceedings against lunatics is not inhibited. They may be sued, and actions may be maintained against them, and whether their insanity will constitute a defense depends on the circumstances of the ease. Sanford v. Sanford, 62 N. Y. 553; Insurance Co. v. Hunt, 14 Hun, 169; Id., 79 N. Y. 541.”

That case was cited with approbation in the opinion of this court delivered in Williams v. Woolen Co., reported in 7 App. Div. 349, 39 N. Y. Supp. 941. In Re Wing, 83 Hun, 285, 31 N. Y. Supp. 941, it appeared that a committee had been appointed by a county court of Niagara county, and in the course of the opinion it was said:

“That court had jurisdiction, concurrent with the supreme court, to entertain the proceeding. Code Civ. Proc. § 340, subd. 4. But by the provision of section 2320 of the same statute, the two courts having jurisdiction of those matters concurrent with each other, the jurisdiction of the court first exercising it became exclusive of that of the other. * * * The effect, of the provision of section 2320, supra, the county court having first exercised the jurisdiction therein mentioned, must therefore have been to exclude the supreme court from jurisdiction of any matter relating to the payment of the debts of the lunatic in this case; and that objection is one which may be taken for the first time on appeal.”

We think the special term committed no error in denying the motion of the appellant, and in providing that the denial should be without prejudice to an application for relief to the county court of Erie county.

Order affirmed, with $10 costs and disbursements. All concur.