In re Parke — 74 N.Y. St. Rep. 366

Majority

p. 366

In the Matter of the Application by William P. Parke, for Appointment of Committee of John Parke, an Alleged Lunatic.

(Supreme Court, New York Special Term,

Filed January, 1896.)

Headnote

1. Lunatic—Committee—Notice.

Section 2325 oí the Code 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 husband or wife.

2. Same.

Where it is made to appear that a commission is in force, the-court will refuse to appoint a certain person^committee of the person and property of the alleged incompetent person.

William L. Flagg, for the motion; Frank Moss, opposed.

I am of the opinion that section 2325 of the Code 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 committed 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 application. 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 cer-¡ tain person committee of the person and property of the alleged incompetent person. This I decline to do, because it has been' 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..