In re the Application of Ashley — 67 A.D. 138

Majority

p. 138

In the Matter of the Application of Elsie Maud Ashley for the Appointment of a Committee of the Person and Property of William D. Ashley, an Alleged Incompetent Person. Elsie Maud Ashley, Appellant; John H. Quinlan, as Committee of the Person and Property of William D. Ashley, Respondent.

Headnote

Committee of a lunatic — dishuisements of the petitioner for his appointment— • how they may he paid,.

Assuming, without deciding, that upon the appointment of a committee of the property of a lunatic, the court,' under section 2336 of the Code of Civil Procedure, must direct him to pay out of the funds in his hands the necessary dis-\ bursements of the petitioner, the latter,.through his attorney, may consent that the court direct that a part of the disbursements be paid, not out of the funds in the hands of the committee, but out of other moneys belonging to the incompetent person.

Appeal by.the petitioner, Elsie Maud. Ashley, from an order of the Supreme Court, made at the Orange Special Term and entered in'the office of the clerk of the county of Kings on the 11th day of July, 1901, resettling an order 'made at the Orange. Special .Term and- entered in said clerk’s- office on the 15th day of June, 1901, and also from the order so resettled.

Thaddeus D. Kenneson, for the appellant.

James G. Meyer and William Vanamee, for the respondent.

Counsel for the appellant insists that the provisions of section 2336 of the Code of Civil Procedure are mandatory, and that where & committee of the property is appointed in a lunacy proceeding the court must direct the payment by him out of the funds in his hands of the necessary disbursements of the petitioner. Assuming, without deciding, that this view is correct, there can be no doubt, that the petitioner through his or her attorney could consent that the court direct that a part of the disbursements be paid, not out of funds in the hands of the committee, but out of other moneys belonging to the incompetent person. This is precisely what tJie learned judge below declares to have been done in the present case.. By the order appealed from he has amended the original prdei by

p. 139

inserting therein a recital to the effect that “ by the consent of the attorney of the petitioner ” $500 of the sum allowed said petitioner is to be paid out of moneys in the hands of the Massachusetts committee. We cannot assume that this recital, carefully inserted after a full review of the occurrences attending the making of the original order, is untrue. It must represent the judge’s recollection of what occurred, stated under the sanction of his official oath ; and if such a consent was given the petitioner cannot complain of the order either in substance or form.

Present — Goodrich, P. J., Bartlett, Woodward, Hirschberq- ¡and Jenks, JJ.

Orders affirmed, with ten dollars costs and disbursements.