O'Brien v. O'Brien — 73 N.Y. St. Rep. 346

Majority

p. 346

Margaret O’Brien, Pl’ff, v. William O’Brien, Def't.

(Supreme Court, New York Special Term,

Filed September, 1895.)

Headnote

1. Lunatic—Appointment of guardian.

In a proceeding for the appointment of a guardian for an alleged lunatic the proper practice is to commence the proposed action, and upon the summons and complaint and affidavit showing that the defendant is mentally competent, 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 427of the Code.

2. Same.

There is 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.

Motion for plaintiff for the appointment of a guardian for defendant, an alleged lunatic.

N. J. O’Connell, for pl’ff.

— 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.