p. 93William E. Warmsley, Resp’t, v. Thomas A. Darragh, App’lt.(New York City Court, General Term,The incapacity of a lunatic before office found is available only to himself or those in privity with him.
Appeal from a judgment in favor of plaintiff.
Brooks, O'Sullivan & Brooks, for app’lt; Nichols & Bacon, for resp’t.
The making and delivery of the note in question by the defendant, as well as the indorsement thereon, in the manner claimed, by plaintiff, being admitted, the question to consider is, can the defendant in this action attack the power of attorney from Robert L. Darragh to Laura A. Darragh and Edgar L. Whitlock, under which the note in question was indorsed and assigned? The defendant says that it was made by Robert L. Darragh, and secured, while he was of unsound mind and mentally incompetent, or, in other words, while he was a lunatic, and therefore such paper is null and void, and thus Laura A. Darragh could not act under such void power of attorney. It is not contended that there was an adjudication of Robert L. Darragh as a lunatic at the time of his death, but that proceedings were commenced and pending only. The fact that such proceedings had been commenced and were pending at'the time of his death would not and did not render him incapable of either making and executing a power of attorney, or any other deed, transfer, or other instrument, and until a committee of the person and estate of the lunatic had been appointed, andan inquisition and office found, the acts of the
p. 94alleged lunatic are voidable, and not void. Since none of these conditions have taken place in the case at bar,' the acts of Robert L. Darragh, the alleged lunatic, were clearly voidable only. A deed executed by a lunatic before office found is not void, but voidable only, and therefore one not in privity with the lunatic cannot allege or prove the lunacy as matter of defense.
Merrit v.
Gumaer 2 Cow. 552 ;
Stucky v.
Mathes, 24 Hun, 461 ; and see particularly
Ingraham v. Baldwin, 9 N. Y. 45 , 47, 48. If Darragh has been formally adjudicated a lunatic, and a committee of his person and estate had been appointed, the power of attorney signed by him might have been absolutely void, and therefore any assignment or transfer under that power after such adjudication might be defeated by the defendant on that ground ; but that is not this case. See
Wagner v.
Harriott, 10 St. Rep. 709 , 711. The incapacity of a lunatic before office found is like that of an infant. Either may avoid his contract, but the privilege is personal, and no stranger can avail himself of it. An infant, by indorsement, can transfer a promissory note, and he may join in an assignment for the benefit of creditors, and no one but the infant or his legal representatives'can question the legality of the transfers, which will hold good until legally avoided: and the rights of the parties who have in the meantime been compelled to pay are protected by such transfers.
Yates v. Lyon, 61 N. Y. 344 ;
Ingraham v. Baldwin,
supra; Tilyou v. Reynolds, 108 N. Y. 558 , 567; 13 St. Rep. 853 . It therefore follows that, since the defendant is not permitted to attack the power of attorney, the assignment and transfer made thereunder by Laura A. Darragh are valid and binding, unless there is some provision in the power of attorney requiring that as to the matters involved herein it must be the joint act of Laura A. Darragh and Edgah Whitlock. It provides that as to certain acts they must be done jointly, but as to others they maybe done singly ; and from our examination we are satisfied that Laura A. Darragh had the right to act singly in the case at bar. The j udgment should therefore be affirmed, with costs.