for the judicial settlement thereof shall be given in the manner in which and to the persons to whom notice of application for the appointment of a committee of the person or property of an alleged incompetent person, lunatic, idiot or habitual drunkard is required to be given by title six of chapter seventeen of the code of civil procedure. Upon the return day of the notice of such application the court shall have the power to appoint a referee to take and state such account and to report to the court with his opinion thereon as to all matters embraced in said account. The court shall have power and it shall be its duty to appoint a suitable person as special guardian of the incompetent person for the protection of his rights and interests in said proceeding.

Upon the motion for a confirmation of the report of a referee appointed pursuant to the provisions hereof or if the accounting be had before the court, upon the court's determination, said account shall be then judicially adjusted, determined, fixed and filed.

The compensation of the referee and of the special guardian appointed under the provisions of this chapter shall in every instance be fixed by the court to be paid out of the estate, if any, of the incompetent person. The judicial settlement of the final account of a committee shall be made in the same manner, so far as may be applicable, as provided in this section for the judicial settlement of an intermediate account.

Amended by L. 1914, ch. 344; L. 1916, ch. 535.

Ordinarily proceedings are unnecessary to settle the intermediate account of a committee of the person of an incompetent, as the accounts of such committee are filed yearly. But where such committee has an accumulating surplus consisting of a monthly allowance which has not been expended an accounting should be had. Matter of Bladen (1915), 166 App. Div. 748, 152 N. Y. Supp. 382.

The committee of an incompetent who has from time to time. presented his accounts, should not on final accounting be compelled to repay to the estate a reasonable monthly payment previously allowed to him. Matter of Cowen (1912), 152 App. Div. 108, 136 N. Y. Supp. 480.

Where it has been made to appear that the committee of an incompetent, in the administration of his trust, has necessarily incurred counsel fees and other expenses, the court may, in its discretion, provide for the payment of such sum to the committee, but not so in the absence of any proof whatever on the subject. Matter of Maxwell (1916), 218 N. Y. 88, revg., 170 App. Div. 138, 155 N. Y. Supp. 792.

Where the acts of the committee of an incompetent person who is also trustee under the terms of a will creating a trust for the

benefit of himself, the incompetent and others, result in the enrichment of himself at the expense of the incompetent, his account as committee should be surcharged. Matter of Anderson (1914), 211 N. Y. 136.

Where, prior to a proceeding for the judicial settlement of the account of the executor of a testator who sometime after making his will was duly adjudged an incompetent, the accounts of the committee of his person and property were judicially settled, adjusted and determined, the Surrogate's Court is without jurisdiction to inquire into any matter involved in said accounting and is bound thereby, and whether the decedent had lucid intervals during the period covered by his committee is wholly immaterial. Matter of Garlick (1916), 96 Misc. 653, 161 N. Y. Supp. 1113.

ARTICLE X.

DEATH OF LUNATIC.

(Fiero, Spec. Pro., 3rd Ed., pp. 463-465.)

CODE CIV. PRO., § 2344. Idem; disposition in case of death.

Code Civ. Pro., § 2344. Idem; disposition in case of death.

Where a person, of whose property a committee has been appointed, as prescribed in this title, dies during his incompetency, the power of the committee ceases; and the property of the decedent must be administered and disposed of, as if a committee had not been appointed. The committee may, in such case, render to the court by which he was appointed, a final account of his proceedings, touching the property of the incompetent. Such account shall contain an inventory in the form prescribed by section twenty-six hundred and sixty of this act and a full and true account in form of debtor and creditor of all his receipts and disbursements, and there shall be appended thereto an affidavit of the committee in the form prescribed by section twenty-six hundred and sixty-one of this act. Notice of the application for settlement of such accounts shall be given in such manner as the court may direct, to the sureties on the official bond of the committee or the legal representatives of such sureties, and to the executor or administrator of the decedent, if any; and, if there be no executor or administrator, to the decedent's husband or wife, and heirs and next of kin, or if any of those persons shall have died, to his executor or administrator. Such account shall be judicially settled, adjusted and determined and, as to the proofs and vouchers in support thereof, shall be subject to the provisions of article one of title five of chapter eighteen of this act with respect to the accounting of executors and administrators.

Amended by L. 1915, ch. 632.

The authority of the committee of an incompetent to represent him and to receive any property to which he was entitled, is limited

to the life of the incompetent. Therefore the administrator of an incompetent's estate is entitled to receive any property which belonged to the incompetent at the time of his death. In re Myer's Estate (1916), 161 N. Y. Supp. 1111.

COMPTROLLER, DECISION IN TAX CASES, HOW REVIEWED. See TAX LAW, CERTIORARI TO REVIEW CORPORATION TAX.

Art.

CONDEMNATION OF REAL PROPERTY.

(Fiero, Spec. Pro., 3rd Ed., pp. 467-666.)

I. Nature and extent of the power.

II. Statutory provisions authorizing exercise of power and how construed.

III. Definitions and scope of act.

IV. The petition and proceedings thereon.

V. Appearance and answer.

VI. Possession of property pending the proceeding.

VII. Trial and judgment.

VIII. Hearing before commissioners.

IX. The award.

X. Final order and costs thereon.

XI. Abandonment and discontinuance of proceeding.
XII. Miscellaneous provisions and matters of practice.
XIII. Appeal and new appraisal.

ARTICLE I.

NATURE AND EXTENT OF THE POWER.

(Fiero, Spec. Pro., 3rd Ed., pp. 470-488.)

SUBD. 1. Definition and origin of power.

2. Extent of and limitations upon the power.

3. Power may be delegated for a public purpose.
4. Compensation must be made.

5. What property can be appropriated.

Subd. 1. Definition and Origin of Power.

(Fiero, Spec. Pro., 3rd Ed., pp. 472-478.)

The Condemnation Law is a general law relating, as its title indicates, to the acquisition of property under the power of eminent domain. It was enacted in its present form by chapter 95, Laws of 1890, and is embodied in the Code of Civil Procedure. Matter of City of Syracuse (1919), 224 N. Y. 201, revg., 182 App. Div. 176, 170 N. Y. Supp. 925.

Subd. 2. Extent of and Limitations upon the Power.

(Fiero, Spec. Pro., 3rd Ed., pp. 472-478.)

If the use of the lands sought is public, the Legislature, or the instrumentality it employs, is sole judge of the necessity of the

condemnation. Matter of Public Service Comm. (1916), 217 N. Y. 61; Bunyan v. Comrs. of Palisades Interstate Park (1915), 167 App. Div. 457, 153 N. Y. Supp. 622. The fact that an act authorizing the exercise of the power of eminent domain states that the use is a public use is not conclusive. The determination. of that question is a judicial one for the court. Queens Terminal Co. v. Schmuck (1911), 147 App. Div. 502, 132 N. Y. Supp. 159; Ontario Knitting Co. v. State (1911), 147 App. Div. 316, 131 N. Y. Supp. 918, affd., 205 N. Y. 409. It is not sufficient that a condemnor intends to devote lands acquired to some public use; they must be devoted to the specific use, or a part thereof, for which the power to condemn was given. Queens Terminal Co. v. Schmuck (1911), 147 App. Div. 502, 132 N. Y. Supp. 159.

The condemnation of lands for the purpose of conserving the Palisades of the Hudson river as an adjunct to a public park is for a public use and within the power of the Legislature. Bunyan v. Comrs. of Palisades Interstate Park (1915), 167 App. Div. 457, 153 N. Y. Supp. 622. Where a street has been used as a highway for 30 to 40 years, for 20 years of which it has been under the exclusive control of the city, condemnation proceedings should not be instituted to acquire a portion of the fee for street purposes, where no objection has been made by the abutting owners to the use of the fee for such purpose and the real object of the proceeding is to afford the city the right to cause the erection of an elevated railroad in the street. In re Ely Ave. (1914), 150 N. Y. Supp. 698.

Whether the public exigency requires the taking of private prop erty for public use is a legislative question, the determination of which, by the Legislature is, generally speaking, final and conclusive. Whether the use for which the taking is authorized is a public use is a judicial question for the determination of the court. Matter of City of Rochester v. Holden (1918), 224 N. Y.

386.

When lands are used in immediate and necessary connection with a public trust by a public corporation, the courts recognize that they are held for a public use or purpose and a general grant of power to condemn lands will not extend to lands already de voted to a public use. In order to reach such lands the grant of