torney, to the effect that the matters of fact therein stated are true. It must be accompanied with proof, by affidavit, that the case is one of those specified in this title. It must set forth the names and residences of the husband or wife, if any, and of the next of kin and heirs, of the person alleged to be incompetent, as far as the same are known to the petitioner, or can, with reasonable diligence be ascertained by him, and also the probable value of the property possessed and owned by the alleged incompetent person, and what property has been conveyed during said alleged incompetency and to whom, and its value and what consideration was paid for it, if any, or was agreed to be paid. The court must, unless sufficient reasons for dispensing therewith are set forth, in the petition or accompanying affidavit, require notice of the presentation of the petition to be given to the husband or wife, if any, or to one or more relatives of the person alleged to be incompe tent, or to an officer specified in the last section. Where notice is required, it may be given in any manner, which the court deems proper; and for that purpose, the hearing may be adjourned to a subsequent day, or to another term, at which the petition might have been presented. [In effect Sept. 1, 1891.

New. See 2 Barb. Ch. Pr.; 2 Barb. Ch. 227, 228; id. 649-652; Matter of Zimmer, 15 Hun, 214; Matter of Fowler, 2 Barb. Ch. 305; Matter of Corlies, 1 Law Bulletin, 59; Matter of Jones, 30 How. 446; Matter of Colah, 6 Daly, 308; Matter of Hoyt, 20 Abb. N. C. 152; Matter of De Melt, 27 Hun, 480.

§ 2326. When foreign committee may be appointed. Where the person, alleged to be incompetent, resides without the State, and within the United States, and a committee or guardian of his property has been duly appointed, pursuant to the laws of the state or territory where he resides, the court may, in its discretion, make an order, appointing the foreign committee, or foreign guardian, the committee of all, or of a particular portion, of the property of the incompetent person, within the State, upon his giving such security for the discharge of his trust, as the court thinks proper.

New. Matter of Colah, 6 Daly, 51; see Matter of Nealy, 26 How. 402.

§ 2327. [Amended, 1895.] Order for commission, or for trial by jury in courts.- Unless an order is made, as prescribed in the last section, if it presumptively appears, to the satisfaction of the court, from the petition and the proofs accompanying it, that the case is one of those specified in this title; and that a committee ought, in the exercise of a sound discretion, to be appointed; the court must make an order, directing, either

1. That a commission issue, as prescribed in the next

section, to one or more fit persons, designated in the order; or

2. That the question of fact, arising upon the competency of the person, with respect to whom the petition prays for the appointment of a committee, be tried by a jury, at a trial term of the court.

3. When it satisfactorily appears from the petition and accompanying affidavits that any person or persons having acquired from the alleged incompetent person, real or personal property during the time of such alleged incompetency without adequate consideration, the court may issue an order, with or without security restraining such person or persons from selling, assigning, disposing of or incumbering said property, or confessing judgment which shall become a lien upon sald property, during the pendency of the proceeding for the appointment of a committee, and said order may in the discretion of the court be continued for ten days after the appointment of such committee. Notice of the execution of the commission shall be given to the person or persons enjoined in such manner as the court may direct.

In effect Jan. 1, 1896; L. 1895, ch. 946.

- The commission

2328. Contents of commission. must direct the commissioners to cause the sheriff of a county, specified therein, to procure a jury; and that they inquire, by the jury, into the matters set forth in the petition; and also into the value of the real and personal property of the person alleged to be incompetent, and the amount of his income. It may contain such other directions, with respect to the subjects of inquiry, or the manner of executing the commission, as the court directs to be inserted therein.

New. 2 Barb. Ch. Pr. 229; id. 653, 655; L'Amoreaux v. Crosby, 2 Paige, 422, 427.

$2329. Commissioners to be sworn; vacancies, how filled. Each commissioner, before entering upon the execution of his duties, must subscribe and take, before one of the officers specified in section 842 of this act, and file with the clerk, an oath, faithfully, honestly, and impartially to discharge the trust committed to him. If a commissioner becomes incompetent, or neglects or refuses to serve, or removes from the State, the court may remove him. The court may, from time to time, fill any vacancy created by death, removal or resignation.

New. See 2 Barb. Ch. Pr. 229, 231.

§ 2330. [Amended, 1895.] Jury to be procured; proceedings thereupon.- The commissioners, or a majority of them, must immediately issue a precept to the sheriff, designated in the commission, requiring him to notify, not less than twelve nor more than twenty-four indifferent persons, qualified to serve, and not exempt from serving, as trial jurors in the same court, to appear before the commissioners, at a specified time and place, within the county, to make inquiry, as commanded by the commission. The sheriff

must notify the jurors accordingly; and must return the precept, and the names of the persons notified, to the commissioners at the time and place specified in the precept. The commissioners, or a majority of them, must determine a challenge made to a juror. Upon the failure to attend, of a person who has been duly notified, his attendance may be compelled; and he may be punished by the court for a contempt, as where a juror, duly notified, fails to attend at a trial term of the court. The commissioners may require the sheriff to cause a talesman to attend, in place of a juror notified, and not attending, or who is excused or discharged; or they may adjourn the proceedings, for the purpose of punishing the defaulting juror, or compelling his attendance. But it is not necessary to cause any talesman to attend, if at least twelve of the persons, notified by the sheriff, appear and are sworn.

In effect Jan. 1, 1896; L. 1895, ch. 916.

New. 2 Barb. Ch. Pr. 229, 231; Matter of Perkins, 2 Johns. Ch. 124; Matter of Pettit, 2 Paige, 174; Matter of Nealy, 26 How. 402; Matter of Wager, 6 Paige, 11; Matter of Tracy, 1 id. 580; Matter of Russell, 1 Barb. Ch. 38.

§ 2331. Proceedings upon the hearing. All the commissioners must attend and preside at the hearing; and they, or a majority of them, have, with respect to the proceedings upon the hearing, all the power and authority of a judge of the court, holding a trial term, subject to the directions contained in the commission. Either of the commissioners may administer the usual oath to the jurors. At least twelve jurors must concur in a finding. If twelve do not concur, the jurors must report their disagreement to the commissioners, who must thereupon discharge them, and issue a new precept to the sheriff, to procure another jury.

New. See 2 Barb. Ch. Pr. 230, 232, 233; Matter of Arnhout, 1 Paige, 497; In re Holmes, 4 Russ. 182; Matter of Russell, 1 Barb. Ch. 38; Matter of Wager, 6 Paige, 11; Tebout's Case, 9 Abb. 211; Matter of Dickie, 7 Abb. N. C. 417.

§ 2332. Return of inquisition and commission.-The inquisition must be signed by the jurors concurring therein, and by the commissioners, or a majority of them, and annexed to the commission. The commission and inquisition must be returned by the commissioners, and filed with the clerk.

New. See 2 Barb. Ch. Pr. 233, 234; Matter of Brown, 1 Abb. Pr. 108; Matter of Morgan, 7 Paige, 236; Matter of Mason, 3 Edw. Ch. 380; s. c..

1 Barb. 436; Matter of Shoul, 40 How. 204; Ex parte Barnsley, 3 Atk. 168; Lamoree's Case, 11 Abb. 274; s. c., 32 Barb. 122; 19 How. 375; Matter of Lasher, 2 Barb. Ch. 97; Matter of Clapp, 20 How. 385; Tebout's Case, 9 Abb. 211; Matter of Christie, 5 Paige, 242; Wadsworth v. Sharpsteen, 8 N.Y. 338; Ex parte Zimmer, 15 Hun, 214; L'Amoreaux v. Crosby, 2 Paige, 422.

§ 2333. Expenses of commission.-The commissioners are entitled to such compensation for their services, as the court directs. The jurors are entitled to the same compensation, as jurors upon the trial of an issue In an action in the same court. The petitioner must pay the compensation of the commissioners, sheriff and jurors.

New. Rule 77; see Code of Proc., 306; Hinds v. Myers, 4 How. 356; 8. c., 3 Code R. 48, Matter of Clapp, 20 How. 385; Matter of Giles, 11 Paige, 638; Matter of Arnhout, 1 id. 497; Matter of Conklin, 8 id. 450; Matter of Folger, 4 Johns. Ch. 169; Matter of Tracy, 1 Paige, 580; Matter of Russell, 1 Barb. Ch. 38; Matter of McClean, 6 Johns. Ch. 440; Matter of Tracy, Paige, 580, 583.

§ 2334. [Amended, 1895.] Proceedings upon trial by jury in court.- Where an order is made, directing the trial, by a jury, at a trial term, of the questions of fact, arising upon the competency of the person, with respect to whom the petition prays for the appointment of a committee, the order must state, distinctly and plainly, the questions of fact to be tried; which may be settled as where an order for a similar trial is made in an action. The court may, in that or in a subsequent order, direct that notice of the trial be given to such persons, and in such a manner as is deemed proper. The trial must be reviewed in the same manner, with like effect, and, except as otherwise directed in the order, the proceedings thereupon are, in all respects, the same as where questions of fact are tried, pursuant to an order for that purpose. The court may make inquiry by means of a reference or otherwise, as it thinks proper, with respect to any matter, not involved in the questions tried by the jury, the determination of which is necessary in the course of the proceedings. The expenses of the trial, and of such an inquiry, must be paid by the petitioner.

In effect Jan. 1, 1896; L. 1895, ch. 946.

New. See 2327, subd. 2, ante; Matter of Russell, 1 Barb. Ch. 38; Matter of Tracy, 1 Paige, 580; Matter of Pettit, id. 174; In re Holmes, Russ. 182; Tebout's Case, 9 Abb. 211; Matter of Christie, 5 Paige, 242; Matter of Payn, 8 How. 220, 224; Matter of Lamoree, 19 id. 375; $,0.. 11 Abb. 274; 32 Barb. 122; Matter of Mason, 1 id. 436; Parsee Mer chants' Case, 11 Abb. N. S. 209; s. c., 3 Daly, 529; Matter of Clapp, How. 385; Matter of McClean, 6 Johns. Ch. 440.

§ 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, 2, amended. L'Amoreaux v. Crosby, 2 Paige, 422: 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 . Trainer, 3 Abb. N. C. 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 com 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 a 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 com. mittee 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 disbursements, 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.