O'Brien v. O'Brien

New York Supreme Court

O'Brien v. O'Brien

38 N.Y.S. 157, 2 N.Y. Ann. Cas. 117, 73 N.Y. St. Rep. 346

CourtNew York Supreme Court

DecidedSeptember 15, 1895

StatusPublished

Cited by2 cases

This text of 38 N.Y.S. 157 (O'Brien v. O'Brien) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

O'Brien v. O'Brien, 38 N.Y.S. 157, 2 N.Y. Ann. Cas. 117, 73 N.Y. St. Rep. 346 (N.Y. Super. Ct. 1895).

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Opinion

BEEKMAN, J.

In this case the proper practice is to commence the proposed action, and upon the summons and complaint and an affidavit showing that the defendant is mentally incompetent, but has never been judicially declared to be so, to apply to the court for an order designating some person upon whom a copy of the summons and complaint shall be served as provided in section 427 of the Code of Civil Procedure. Of course, the defendant must also be served. There is no objection to inserting in the order a provision requiring the person so designated to appear in the action for the purpose of protecting the interests of the lunatic. There seems to be no provision in the Code for the appointment of a special guardian ad litem for a lunatic, except where the latter has been judicially declared to be incompetent, and his committee is not deemed fit to represent him.

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BEEKMAN, J.

In this case the proper practice is to commence the proposed action, and upon the summons and complaint and an affidavit showing that the defendant is mentally incompetent, but has never been judicially declared to be so, to apply to the court for an order designating some person upon whom a copy of the summons and complaint shall be served as provided in section 427 of the Code of Civil Procedure. Of course, the defendant must also be served. There is no objection to inserting in the order a provision requiring the person so designated to appear in the action for the purpose of protecting the interests of the lunatic. There seems to be no provision in the Code for the appointment of a special guardian ad litem for a lunatic, except where the latter has been judicially declared to be incompetent, and his committee is not deemed fit to represent him.

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Bluebook (online)

38 N.Y.S. 157, 2 N.Y. Ann. Cas. 117, 73 N.Y. St. Rep. 346, Counsel Stack Legal Research, https://law.counselstack.com/opinion/obrien-v-obrien-nysupct-1895.

Opinion

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