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$ 2335. [Amended, 1895.] Subject of inquiry in cases of lunacy.- Where the petition alleges, that the person, with respect to whom it prays for the appointment of a committee, is incompetent, by reason of lunacy, the inquiry with respect to his competency, upon the execution of a commission, or the trial at a trial term, as prescribed in this title, must be confined to the question, whether he is so incompetent, at the time of the inquiry; and testimony, respecting any thing said or done by him, or his demeanor or state of mind, more than two years before the hearing or trial, shall not be received as proof of lunacy, unless the court otherwise specially directs, in the order granting the commission, or directing the trial by jury.
In effect Jan. 1, 1896; L. 1895, ch. 946. L. 1874, ch. 446, 82, amended. L’Amoreaux v. Crosby, 2 Paige, 4221 Van Deusen v. Sweet, 51 N. Y. 386; Van Wyck v. Brasher, 21 Alb. L. J. 475; Matter of Mason, 1 Barb. 436; Matter of Ganse, 9 Paige, 416; Hirsch 0. Trainer, 3 Abb. N. 0. 274, Banker v. Banker, 63 N. Y. 409; Hicks v. Marshall, 8 Hun, 327; Mut. L. Ins. Co. v. Hunt, 9 Week. Dig. 365 ; 21 Alb. L. J. 173; Matter of Wing, 2 Hun, 671 ; Ex parte Gilbert, 3 Abb. N. C. 222; Matter of Beckwith, 3 Hun, 443; Matter of Stauderman, 3 Abb. N. C. 187.
$ 2336. Proceedings upon verdict, or return of come mission.—Upon the return of the commission, with the inquisition taken thereunder, or the rendering of the verdict of the jury, upon the question submitted to it by the order for å trial by a jury, the court must either di. rect a new trial or hearing, or make such a final order upon the petition as justice requires. Where a final order is made, dismissing a petition, the court may, in its discretion, award in the order a fixed sum as costs, not exceeding fifty dollars and disbursements, to be paid by the petitioner to the adverse party. Where a committee of the property is appointed, the court must di. rect the payment by him, out of the funds in his hands, of the necessary disbursements of the petitioner, and of such a sum, for his costs and counsel fees, as it thinks reasonable ; and it may, in its discretion, direct the com. mittee to pay a sum, not exceeding fifty dollars and dish bursements, to the attorney for any adverse party.
$ 2336 (a). Sections of this title not applicable when application for committee is made under authority of this state.- Sections two thousand three hundred and twenty-five to two thousand three hundred and thirty-six, both inclusive, of this title shall not apply to applications for the appointment of a committee made by it on behalf of the State to secure reimbursement, in whole or in part, for maintenance and support in a State institution. In effect May 29, 1895; L. 1895, ch. 824.
$ 2337. (Amended, 1887.) Security to be given by committee. — The provisions of article first of title seven and section two thousand five hundred and ninety-five of article fifth of title second of chapter eighteenth of this act, respecting the security to be given by the guardian of the person or of the property of an infant, appointed by a surrogate's court, apply to a committee of the person or of the property, appointed as prescribed in this article. A committee of the property cannot enter upon the execution of his duties, until security is given, as prescribed by the court. A committee of the person cannot enter upon the execution of his duties, until security is given, if required by the court.
New. See 22 2829-2831, post. Matter of Paige, 7 Daly, 165; Matter of Livingston, 1 Johns. Ch. 436; Matter of Taylor, 9 Paige, 611; Matter of Lamoree, 19 How, 375; 8. c. 11 Abb. Pr. 274; 32 Barb. 122 ; see 2 Barb, Ch. Pr. 237; In re Frank, 2 Russ. 450; Matter of White, 1 Barb. Ch. 43.
$ 2338. [Amended, 1895.] Compensation of committee. - A committee of the property is entitled to the same compensation as an executor or administrator. But in a special case, where his services exceed those of an executor or administrator, the supreme court or a county court within the county may allow him such an additional compensation for such additional services, as it deems just. The compensation of a committee of the person must be fixed by the court, and paid by the committee of the property, if any, out of the funds in his hands. The additional compensation authorized by this section may be allowed to the committee upon any judicial settlement made by him, and shall be for such additional services up to and including such settlement.
In effect Jan. 1, 1896; L. 1895, ch, 946.
See Laws 1890, ch. 516; Parsee Merchants' Case, 11 Ahb. N. S. 209 : Matter of Colah, 6 Daly, 51; Matter of McAdams, 19 Hun, 292; Matter of Clapp, 20 How. 385; see Matter of Livingston, 9. Paige, 440; Clinch ?. Eckford, 8 id. 412; Matter of Bank of Niagara, 6 id. 213; Vanderheyrien v. Vanderheyden, 2 id. 287; Matter of Burr, 17 Barb. 9; Pharis v. Gere, 110 N. Y. 336.
$ 2339. Committee under control of court; limita. tion of powers.--A committee, either of the person or of the property, is subject to the direction and control of the court by which he was appointed, with respect to the execution of his duties ; and he may be suspended, removed, or allowed to resign, in the discretion of the court. A vacancy created by death, removal, or resignation may be filled by the court. But a committee of the property cannot alien, mortgage, or otherwise dis. pose of, real property, except to lease it for a term not exceeding five years, without the special direction of the court, obtained upon proceedings taken for that purpose, as prescribed in title seventh of this chapter.
Beach v. Bradley. 8 Paige, 146; Matter of Carter, 3 id. 146; Matter of Miller, 15 Abb. 277; Matter of Lytle, 3 Paige, 251; Matter of Grifin, 5 Abb. N. S.
96; Matter of Burr, 17 Barb. 9, 14; s. C., 2 Barb. Ch, 208; Matter of Salisbury, 3 Johns, Ch. 317 ; Parsee Merchants' Case, 11 Abb. N. S. 209; 8. C., 3 Daly, 529 ; Matter of Heeney, 2 Barb. Ch. 326; Peckersgill v. Reade, 5 Hun, 170 ; Ex parte Parker, 6 Alb. L. J. 324; Martin v. Wind. sor Hotel Co., 70 N. Y. 101.
*$ 2340. Committee of property may maintain actions, etc.-A committee of the property, appointed as prescribed in this title, may maintain, in his own name, adding his official title, any action or special proceeding, which the person, with respect to whom he is appointed, might have maintained, if the appointment had not been made. Part of $5 of act of 1874, amended. Davis r. Carpenter, 12 How. 287;. Thomas v. Bennett, 58 Barb. 197,_201; McKillip v. McKillip, 8 id. 552 ; Person v, Warren, 14 id. 483; Ex parte Wing, 2 Hun, 671; 8. c., 5 S. C. 205 ; Burnett v. Bookstaver, 10 llun, 481.
§ 2341. [Amended, 1894.] Id.; to file inven. tory and account. — The provisions of article two of title seven of chapter eighteen of this act, requiring the general guardian of an infant's property, appointed by a surrogate's court, to file in the month of January in each year an inventory, account and affidavit and prescribing the form of the papers so be filed, apply to a committee of the property appointed, as pre scribed in this title. For the purpose of making that application the committee is deemed a general guardian of the property; the person with respect to whom he is appointed, is deemed a ward and the papers must be filed in the office of the clerk of the court by which the committee was appointed, or if he was appointed by the supreme court, in the clerk's office where the order appointing him is entered. In every case where a committee has used or employed the services of an incompetent person, with respect to whom he has been appointed a committee, or where moneys have been earned by or received on behalf of such incompetent person, the committee must account for any moneys so earned or de rived from such services, the same as for other property or assets of the incompetent person. In effect February 23, 1894 ; Laws 1894, ch.51.
$ 2342. (Amended, 1895.] Id.; may be compelled to file the same, or render an additional account, etc.- In the month of February of each year, the presiding judge of the court, by which the committee of the property was appointed, or, if he was appointed by the supreme court, the county judge of the county where the order appointing him is entered, must examine, or cause to be examined under his direction, all accounts and inventories filed by committees of the person and property, since the first day of February of the preceding year: If it appears, upon the examination, that a committee, appointed as prescribed in this title, has
* See ante, $ 429 ; $ 426, subd. 2; $S 427-8, 1755.
omitted to file his annual inventory or accounting, or the aff. davit relating thereto, as prescribed in the last section; or if the judge is of the opinion that the interest of the person, with respect to whom the committee was appointed, requires that he should render a more full or satisfactory inventory or account, the judge must make an order, requiring the committee to supply the deficiency, and also, in his discretion, personally to pay the expense of serving the order upon him. An order so made may be entered and enforced, and the failure to obey it may be punished, as if it were made by the court. Where the committee fails to comply with the order, within three months after it is made or, where the judge has reason to believe that suficient cause exists for the removal of the committee, the judge may, in his discretion, appoint a fit person special guardian of the incompetent person with respect to whom the committee was appointed, for the purpose of filing a petition in his behalf for the removal of the committee and prosecuting the necessary proceedings for that purpose. The committee may be compelled, in the discretion of the court, to pay personally the costs of the proceedings so instituted. The committee of the property of an incompetent person appointed as prescribed in this
title, may at any time in the discretion of the court making such appointment, render to such court an intermediate judicial account of all his proceedings affecting the property of the incompetent person to the date of the filing thereof; and said account shall be then judicially adjusted, determined and filed; and the same shall be in all respects a final judicial account of the proceedings of said committee affecting said property to that time. Notice of the application for such intermediate accounting shall be given in the manner in which and to the persons to whom notice of application for the appointment of a committee of the person or property of an alleged lunatic, idiot, or habitual drunkard is required to be given by title six of chapter seventeen of the code of civil procedure. The court shall have power and it shall be its duty, if, in its discretion, the interests of the person with respect to whom the committee was appointed, require it, to appoint a suitable person as special guardian of the incompetent person for the protection of his rights and interests in said proceeding.
In effect Sept. 1, 1895; L. 1895, ch. 746, superseding amendment in ch. 946. See ch.946, $4.
L. 1874, ch. 446, $ 4, amended; see $ 2844, post. Monell v. Monell, 5 Johns. Ch. 283 ; Hay v. Warren, 8 Paige, 609.
$ 2343. Property, when to be restored. Where a person, with respect to whom a committee is appointed, as prescribed in this title, becomes competent to manage himself or his affairs, the court must make an order, discharging the committee of his property, or the committee of his person, or both, as the case requires, and requiring the former committee to restore to him the property, remaining in the committee's hands. Thereupon the property must be restored accordingly.
Id., $ 28, amended; 2 Barb. Ch. Pr. 239 ; Matter of Hoag, 7 Paige, 312; Matter of Hanks, 3 Johns. Ch. 567; Matter of Burr, 3 Barb. Ch. 208; Matter of McFarlane, 2 Johns. Ch. 440.
8 2344. Id. ; disposition in case of death.Where a person, of whose property a committee has been appointed, as prescribed in this title, dies during his incom
petency, the power of the committee ceases ; and the property of the decedent must be administered and disposed of, as if a committee had not been appointed. Id., & 20 and $ 25, amended by L. 1863, ch. 724 (6 Edm. 581).
Proceedings for the disposition of the real proporty
an infant, lunatic, idiot, or habitual drunkard. So. 2345. Action to compelconveyance.
2346. Who may maintain action.
$ 2345. Action to compel conveyance. In either of the following cases, an action may be maintained against an infant, or a person incompetent to manage his affairs by reason of lunacy, idiocy, or habitual drunkenness, to procure a judgment, directing a convey. ance of real property, or of an interest in real prop. erty:
1. Where the infant or incompetent person is seized or possessed of the real property, or interest in real property, by way of mortgage, or only in trust for another.
2. Where a valid contract for the sale or conveyance of the real property, or interest in real property, has been made ; but a conveyance thereof cannot be made, by reason of the infancy or incompetency of the person in whom the title is vested.