In re Lowe — 45 N.Y. St. Rep. 914

Majority

p. 914

In the Matter of Jemima Lowe, an alleged Lunatic, for removal of Committee.

(Supreme Court, General Term, Fourth Department,

Filed May 13, 1892.)

Headnote

Lunatics—Motion to discharge committee.

In a proceeding to remove the committee of a lunatic, and to restore the property to the alleged lunatic, where it appears that no notice of the application for a commission was served on the alleged lunatic, who asks now to be personally examined as to her sanity, and the preponderance of evidence and weight of the affidavits seems to be in favor of. her sanity, the application should not he denied, but a further investigation had before the court or referee, upon which a proper result may be reached. •

Appeal from an order made by the county court of Madison county denying the petition of Jemima Lowe, an alleged lunatic, praying that the committee of her person and estate be discharged and her property be restored to her. Petitioner is a married woman upwards of seventy-three years of age, who was married to John Lowe, who resides at Munnsville, Madison county, N. Y., over fifty-two years ago. The petitioner and her husband formerly resided in the city of Toronto in the Dominion of Canada. The petitioner seems to have some $2,500 on deposit in the Onondaga Savings Bank, and $2,500 on deposit in the Syracuse Savings Bank in the city of Syracuse. It seems that in the month of August, 1890, after the petitioner went to Canada, her husband commenced proceedings before the Madison county court to have a committee of her person and estate appointed; and on August 22, 1890, James Lowe, nephew of John Lowe, the husband, was appointed committee of the person and estate of said Jemima Lowe, and no notice for the application for the appointment of said committee, or of the time and place of the execution of the proceedings, was given to the alleged lunatic. On March 13, 1891, motion papers for the removal of the committee were served upon the committee, and on April 10, 1891, the Madison county court denied the motion, but “ with leave to the petitioner to renew the same upon fresh papers, as she may be advised.”

On August 20, 1891, a second notice of motion was served for the removal of the committee, and on August 2, 1891, the court again denied the motion, and the order is filed in the Madison county clerk’s office, and the appeal before us is from that order.

It has been asserted in behalf of the petitioner that the order of August 22, 1890, appointing a committee is void, as “ no notice of either the application for a commission having been given to the alleged lunatic, or of the place or time of holding of the inquisitionbut the decision of the general term, first department, in Matter of Blewitt, 41 St. Rep., 429 , holds that the failure to give such a notice is a “grave irregularity," and it does not

p. 915

“ deprive the court of jurisdiction where the allegations of the petition show presumptively that the person is incompetent to manage his affairs by reason of lunacy.”

Wilson, Kellogg & Wells, for app’lt; Charles Shumway, for resp’t

The petition presented for the removal of the committee stated that a notice had not been given to the petitioner. The notice of motion asked for an order that the committee be removed, and for such other relief as might be just. Mo sufficient reason seems to be given for not having served upon the appellant notice of the proceedings for the appointment of a committee. See § 2325 of the Code.

In behalf of the appellant it was asked that she might be permitted to personally appear and be examined as to her sanity. Mo such opportunity seems to have been afforded her by the county court. The preponderance of the evidence and the weight of the affidavits found in the appeal book seem to be in favor of the sanity of the appellant. If an oral examination had been had of the affiants, that court might have come to the conclusion that the committee should be removed and the property restored to the petitioner. Viewing the evidence and affidavits found in the appeal book as we do, we think the order appealed from should be reversed; upon further proceedings before the county court an oral examination of witnesses may be ordered before the court, or a referee appointed for such purpose; when Such an investigation shall have been had before the court or a referee, and the evidence thus taken been considered, a result may be reached upon the evidence produced by both parties which will be more satisfactory to the conscience of the court below as well as to this court.

Order reversed, with ten dollars costs and' disbursements, and proceedings remitted to the county, court of Madison county. Hardin, P. J., Martin and Merwin, JJ., concur.