O'BRIEN v. O'BRIEN

(2 N. Y. Ann. Cas. 117.) O’BRIEN v. O’BRIEN. (Supreme Court, Special Term, New York County. September, 1895.) Lunatic—Appointment of Guardian—Practice. In a proceeding for the appointment of a guardian for an alleged lunatic, who has not been judicially declared such, the proper practice is to apply to the court for an order under Code Civ. Proc. § 427, designating a person on whom service shall be made in addition to the defendant himself, and the order may require such person to appear, and protect the interest of the lunatic. There is no provision in such cases for the appointment of a guardian ad litem. Action by Margaret O’Brien against William O’Brien. Motion by plaintiff for the appointment of a guardian for defendant, an alleged lunatic. N. J. O’Connell, for the plaintiff. [MAJORITY — BEEKMAN, J.] 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.