In re Parke — 37 N.Y.S. 1067

Majority

p. 1067

(15 Misc. Rep. 662.)

In re PARKE.

(Supreme' Court, Special Term, New York County.

January, 1896.)

Headnote

1, Insanity—Appointment op Committee—Notice.

Code Civ. Proc. § 2325, relating to appointment of committees for incompetent persons, provides that 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 he given to the husband or wife, or to one or more of the relatives, of the person alleged to be incompetent, etc. Held that, where the application for the appointment of a committee is made by the husband or wife, notice to a relative of the alleged incompetent person need not be given.

2. Same—When Refused.

A motion to appoint a certain person committee of the person and property of an alleged incompetent person will be denied where it appears that a commission is in force at the time of the hearing.

Motion by William P. Parke for the appointment of himself as committee of John Parke, an alleged lunatic. Denied.

William L. Flagg, for the motion.

Frank Moss, opposed.

I am of the opinion that section 3325 of the Code^[1] does not require notice to be given to a relative of the alleged incompetent person when the application for the appointment of committee is made by the husband or wife. The statute contemplates that the motion for the appointment of a committee may be made by “any. person,” and that if made by any person other than husband or wife, or a relative, notice thereof must be given to the husband or wife, or to a relative. Notice is only to be given to a relative when not given to the husband or wife. In this case it was unnecessary to give notice to the wife, because she made the ápplication. It is to be noticed that this is not an application to set aside the commission heretofore issued herein, and that, therefore, I cannot set that commission aside, even if it has been improperly issued. The motion is to appoint a certain person committee of the person and property of the alleged incompetent person. This I decline to do, because it has been

1 Code Civ. Proc. § 2325, provides as follows: “* * * 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 of the relatives of the person alleged to be incompetent, or to an officer specified in the last section. * * * ”

p. 1068

made to appear that a commission is now in force, and on the return of that commission the matter can be brought before the court. Motion denied, without costs. •