To the

Petition for leave to sue a Receiver - Actions by lunatics, etc.

(or, To Hon. William L. Learned, a Justice of the Supreme Court.)

The petition of John Doe, of

shows:

1. That John Smith, of

, respectfully

was heretofore

appointed receiver of (describe estate briefly) by your (honorable court).

2. (State cause of action.)

3. (Set forth the reasons why an action is preferable to a reference.)

Wherefore your petitioner prays an order of (this court) permitting him to bring an action in court against the said John Smith, as receiver aforesaid, and for such other or further relief as to (the court or your honor) may seem meet. (Dated.)

(Verification the same as to a complaint.)

Order granting leave to sue Receiver.

SUPREME COURT.

In the matter of the application of John Doe.

(Signature.)

At a special term (as in p. 199.)

On reading and filing the petition of John Doe, and on motion of D. C. Herrick, Esq., of counsel for the petitioner, after hearing of W., of counsel for John Smith, receiver.

ORDERED: That the said John Doe have leave to commence an action against the said John Smith, as receiver of (describe the estate), for (state object of action) in (this court).

ARTICLE V.

ACTIONS BY AND AGAINST LUNATICS, ETC.

Section 1. Actions by lunatics, etc.

a. How commenced. All suits affecting the person or property of a person who has been judicially declared to be a lunatic, or a habitual drunkard, must be prosecuted in his own name and by his next friend; except those suits which, by statute, may be commenced in the name of his committee. See McKillip v. McKillip, 8 Barb. 552; Petrie v. Shoemaker, 24 Wend. 85.

The property and person of a lunatic being under the protection and control of the court, it follows, as a matter of course,

Actions against lunatics, etc.

that he cannot commence an action without leave of court.

See

Brown v. Nichols, 9 Abb. N. S. 1; S. C., 42 N. Y. (3 Hand) 26; Matter of Heller, 3 Paige, 199.

Section 2. Actions against lunatics, etc.

a. Leave to sue necessary. against the estate of a lunatic for whom a committee has been appointed, without express leave of court. Williams v. Cameron, 26 Barb. 172; Soverhill v. Dickson, 5 How. 109; S. C., 3 Code R. 162; Crippen v. Culver, 13 Barb. 424 (428); Matter of Hopper, 5 Paige, 490; Matter of Heller, 3 id. 201. See Brown v. Nichols, 42 N. Y. (3 Hand) 26; 9 Abb. N. S. 1.

An action cannot be commenced

The same rule applies to the commencement of actions against the estate of a habitual drunkard. Hall v. Taylor, 8 How. 428. b. Commencing without leave. Where an action is commenced against a lunatic without leave, the proper course is to apply to the court which appointed the committee for an order to restrain the prosecution of the suit, and to punish the plaintiff for contempt. Crippen v. Culver, 13 Barb. 424; Brown v. Nichols, 9 Abb. N. S. 1; S. C., 42 N. Y. (3 Hand) 26. See Clark v. Dunham, 4 Denio, 262.

In such case, if a judgment is obtained, it is merely voidable and not void. Brown v. Nichols, 9 Abb. N. S. 1; S. C., 42 N. Y. (3 Hand) 26; Sternbergh v. Schoolcraft, 2 Barb. 153. See Crippen v. Culver, 13 id. 424.

Ib.

c. Application for leave. This application is a special proceeding. See Williams v. Cameron, 26 Barb. 172. It must be made to the supreme court (or county court which appointed the committee, where such is the case) for leave to sue, or for a reference to inquire and report what is due the petitioner. Hall v. Taylor, 8 How. 429; Soverhill v. Dickson, 5 id. 109. On such application, if the petitioner's claim is undisputed, the court will order the committee to pay it, or, if the claim is seriously disputed, order a reference or grant permission to bring an action. Soverhill v. Dickson, 5 How. 109; Williams v. Cameron, 26 Barb. 172; Hull v. Taylor, 8 How. 429; Matter of Hopper, 5 Paige, 489. A reference is generally preferred to an action. Williams v. Cameron, 26 Barb. 176.

d. Petition for leave to sue the committee of a Lunatic, etc. To the Supreme Court of the State of New York (or other court) : The petition of John Doe, of, etc., respectfully shows:

Order granting leave to sue the committee of a lunatic, etc.

1. That Richard Roe, of, etc., is justly indebted to your petitioner in the sum of dollars, with interest thereon, from the day of 18 for (state briefly the cause or causes of indebtedness, as they would be stated in a concise complaint), that an account of the (goods, etc., so furnished as aforesaid), is hereunto annexed, marked schedule "A," that the items mentioned in said account (or in said account last aforesaid) are in all respects correct, that (the goods, etc., there charged were, in fact, delivered to the said Richard Roe, at the times stated in said account) and that no part of said account has been paid or satisfied (except the sum of dollars, stated therein).

2. That your petitioner is informed and believes that the said Richard Roe has been declared a lunatic by the supreme court (or other court) and, that John Smith, residing at

in the county of is now the committee of his person and estate; and, that he has been such committee for several months last past.

3. That your petitioner has duly presented the said accounts (or, has caused said accounts to be duly presented) to the said committee for payment; but the said committee declined (or refused, or neglected) to pay the same, or any part thereof; and the sum of dollars, with interest as aforesaid, is now

justly due to your petitioner.

Wherefore your petitioner prays the order of this court directing the said committee to pay to your petitioner the amount of his account aforesaid (or the balance due thereon), to wit, the dollars, with interest thereon from the

sum of day of 18 ; or that a reference may be ordered to pass upon the said accounts; or that your petitioner may have leave to bring an action against the said committee, to establish and adjust said accounts; or for such other or further order as to the court may seem meet.

DANIEL CAMERON,

Attorney for Petitioner.

(Verification the same as to a complaint.)

(Signature.)

e. Order granting leave to sue the committee of a Lunatic, etc. SUPREME COURT (OR OTHER COURT).

In the matter of Richard Roe, a

lunatic.

}

At a special term (as in p. 199.)

On reading and filing the petition of John Doe, dated the day of 18, and after hearing A. B., Esq., attorney for the petitioner, and Alva H. Tremain, Esq., counsel for John Smith, committee.

ORDERED, 1: That the said John Doe have leave to bring an action in this court (or other court) against the said John Smith,

Actions by and against infants, guardians, etc.

committee, for the purpose of establishing and adjusting the claims mentioned in said petition, and the amount due thereon, if any thing, to the said petitioner.

2. That the said petitioner, if he shall think proper, may join the said Richard Roe, as a party defendant, in said action.

ARTICLE VI.

ACTIONS BY AND AGAINST INFANTS, GUARDIANS, ETC.

Section 1. Actions by infants, guardians, etc.

a. Partition. Before proceedings can be instituted by an infant for the partition of real estate, or for a sale of the same, permisison of the supreme court must be obtained. 4 R. S., Edm. ed., 604; Laws of 1852, ch. 277.

b. Leave, when granted. Leave to commence such proceedings will not be granted, unless it be made to appear to the satisfaction of the court that the interest of the infant requires such partition or sale. Ib. Lansing v. Gulick, 26 How. 250. And a report of a referee that, in his opinion, it is a proper case in which to grant such leave, is not sufficient to warrant the court in doing so. Matter of Marsac, 15 How. 383.

So, also, it should be shown that the co-tenants refused to purchase the infants' share in the estate, at its fair value, before permission will be granted for the commencement of a partition suit in their names. Matter of Marsac, 15 How. 383.

Section 2. Actions against infants, guardians, etc.

a. Guardian. As a general rule, an infant must now sue or be sued by guardian only. The Code abolishes the old practice of suing by next friend. Hoftailing v. Teal, 11 How. 188. See Freyberg v. Pelerin, 24 id. 202; Hulbert v. Young, 13 id. 413. And, in an action of partition, a guardian for minor defendants should be procured before service of the summons. Althause v. Radde, 3 Bosw. 410. See Rogers v. McLean, 11

Abb. 440.

A judgment obtained against an infant defendant, before the appointment of a guardian, is irregular. Kellog v. Klock, 2 Code R. 28; Boylen v. McAvoy, 29 How. 278. And such irregnlarity cannot be waived. Fairweather v. Satterly, 7 Rob. 546. See McMurray v. McMurray, 41 How. 41; S. C., 9 Abb. N. S. 315.

Petition by infant.and guardian for leave to commence action for partition.

Section 3. Petition by an infant and guardian for leave to commence an action for partition.

To the Supreme Court of the State of New York:

The petition of John Den and Richard Fen respectfully shows:

1. That the said John Den is an infant of the age (over fourteen) years, and that he resides in

2. That the said Richard Fen, who resides in

on the

day of

, was,

18 duly appointed general guardian of said John Den, by the (surrogate of the county of

).

3. That the said John Den is a tenant, in common with (describe co-tenants) in fee simple of certain real estate in (describe the property, and state infant's share).

4. That the following persons are interested in, or have a lien upon, said real estate, to wit: (give the names of the parties and the nature of their interests).

5. That the said real estate is now in the possession of

6. That the taxes and assessments due upon the same have not been paid, but there is now due for the same the sum of dollars, as your petitioners are informed and

believe.

dol

dollars,

7. That the value of said real estate is about lars, that the share of said John Den is worth clear of all liens, as your petitioners are informed and believe; but the amount received by the said John Den on account of the same during

dollars.

years last past, is only

8. That all the other co-tenants above named refuse to unite in the sale of said premises, or to purchase the share of your said petitioner, John Den, at any price whatever (or other facts showing why the infant should be allowed to commence an action).

9. That, by reason of the premises, the said John Den would be greatly benefited by a partition of the said property.

Wherefore your petitioners pray that the court will allow the said John Den to commence (an action) for partition and sale, if 'necessary, of said real estate, and that the said Richard Fen may be appointed the guardian of said John Den, to conduct the proceedings in such action on his behalf. (Dated.)

(Signatures.)

The above-named John Den and Richard Fen, being duly sworn, each for himself, severally says, that the above petition is true of his own knowledge, except as to the matters therein stated to be on information and belief, and as to those matters he believes it to be true.

(Jurat.)

(Signatures.)