3. In every other case, he must give at least four months' notice.

Notice may be given, as required by this section, by serving it as prescribed in this act for the service of a paper upon an attorney, in an action in the supreme court.

§ 2314. The commissioner or commissioners possess the same powers, and must proceed in the same manner, as a referee, appointed by an order requiring the production of the tenant for life, or proof of his existence; except that they cannot proceed, unless a person is produced before them, as being the person whose death is in question. The return to the commission must expressly state whether any person was or was not so produced. The testimony, respecting the identity of a person so produced, must be taken, unless otherwise specially directed by the court, as prescribed in chapter ninth of this act, for taking the depositition of a witness upon oral interrogatories; except that it is not necessary to give any other notice of the time and place of examination, than that prescribed in the last section.

$2315. Upon the return of the commission, the proceedings are the same as upon the report of a referee, as prescribed in sections two thousand three hundred and nine and two thousand three hundred and ten of this act; but the court may, in its discretion, receive additional proofs from either party.

§ 2316. Where costs of a special proceeding, taken as prescribed in this title, are awarded, they must be fixed by the court at a gross sum, not exceeding fifty dollars, in addition to disbursements. Where provision is not specially made in this title for the award of costs, they may be denied, or awarded to or against either party, as justice requires

§ 2317. The possession of real property, which has been awarded to the petitioner, as prescribed in this title, upon the presumption of the death of the perso, upon whose life the prior estate depends, must be restored, by the order of the court, to the person evicted, or to his heirs or legal representatives, upon the petition of the latter, and proof, to the satisfaction of the court, that the person presumed to be dead is living. The proceedings upon such an application are the same, as prescribed in this title, upon the application of the person to whom possession is awarded.

2318. A person evicted, as prescribed in this title, may, if the presumption, upon which he is evicted, is erroneous, maintain an action against the person who has occupied the property, or his executor or administrator, to recover the rents and profits of the property, during the Occupation, while the person, upon whose life the prior estate depends, is or was living.

§ 2319. A final order, made as prescribed in this title, awarding to the petitioner the possession of real property, is presumptive evidence only, in an action of ejectment,

!

11 Abb. N.C, 120.

20 Id 162.

83 Hun, 284.

83 Hun, 284.

brought against him by the person evicted, or in an action brought as prescribed in the last section, of the life or death of the person upon whose life the prior estate depends.

TITLE VI.

Proceedings for the appointment of a committee of the person, and of the property, of a lunatic, idiot, or habituai drunkard; general powers and duties of the committee.

§ 2320. [Am'd 1894, 1895, amendment to take effect January 1, 1896.] The jurisdiction of the supreme court extends to the custody of the person, and the care of the property, of a person incompetent to manage himself or his affairs, in consequence of lunacy, idiocy, habitual drunkenuess, or imbecility arising from old age or los of memory and understanding or other cause. Where a county court has jurisdiction of those matters, concurrent with that of the supreme court, the jurisdiction of the court first exercising it, as prescribed in this title, is exclusive of that of the others, with respect to any matter within its jurisdiction, for which provision is made in this title. In all proceedings under this title for the appointment of a committee of such a person he shall be designated "an alleged incompetent person;" and after the appointment of a committee of such person, in all subsequent proceedings the lunatic, idiot, habitual drunkard or imbecile shall be designated "an incompetent person." § 2321. The court exercising juris liction over the property of either of the imcompetent persons specified in the last section, must preserve his property from waste or destruction; and out of the proceeds thereof must provide

$$ 2322-2323 COMMITTEE OF INCOMPETENT.

195

for the payment of his debts, and for the safe keeping and maintenance, and the education, when required, of the incompetent person and his family.

2322. The jurisdiction, specified in the last two sections, must be exercised by means of a committee of the person, or a committee of the property, or of a particular portion of the property. of the incompetent person, appointed as prescribed in this title. The committee of the person and the comwittee of the property may be the same individual, or different individuals, in the discretion of the court.

§ 2323. [Am'd 1895.] An application for the appointment of such a committee must be made by petition, which may be presented by any person. Except as provided in the next section, where the application is made to the supreme court, the petition must be presented at a special term held within the judicial district, or to a justice of said court within such judicial district at chambers, where the person alleged to be incompetent resides; or if he is not a resident of the State, or the place of his residence can not be ascertained, where some of his property is situated, or the State insiitution is situated of which he is an inmate.

§ 2323 (a). Application when incompetent person is In a State institution ; petition, by whom made; contents and proceedings upon presentation thereof. [Added 1895. Am'd 1897.]--Where an incompetent person has been com. mitted to a state institution in any manner provided by law, and is an inmate thereof, the petiti n may be presented on behalf of the state by a state officer having special jurisdiction over the institution where the incompent person is confined or the superintendent or acting superintendent of said institution; the petition must be in writing and verified by the affidavit of the petitioner or his attorney, to the effect that the matters therein stated are true to the best of his information or belief; it must show that the person for whose person or property, or both, a committee is asked has been legally committed to a state institution over which the petitioner has special jurisdiction, or of which he is superintendent or acting superintendent, and is at the time an inmate thereof; it must also state the institution in which he is an inmate, the date of his admission, his last known place of residence, the name and residence of the husband or wife, if any, of such person, and if there be none, the name and residence of the next of kin of such person living in this state so far as known to the petitioner; the nature, extent and income of his property, so far as the same is known to the petitioner, or can with reasonable diligence be ascertained by him. The petition may be presented to the supreme court at any special term thereof, held either in the judicial district in which such incompetent person last resided, or in the district in which the state institution in which he is committed is situated, or to a justice of the supreme court at chambers within such judicial district. Notice of the presentation of such petition shall be personally given to such person, and also to the husband or wife, f any, or if none to the next of kin named in the petition,

15 Misc. 662.

and to the officer in charge of the institution in which such person is an inmate. Upon the presentation of such petition, and proof of the service of such notice, the court or justice may, if satisfied of the truth of the facts required to be stated in such petition, immediately a point a committee of the person or property, or both, of such incompetent person or may require any further proof which it or he may deem necessary before making such appointment.

§ 2323 (b). [Added 1895 ]—Upon the presentation of a petition and the appointment of a committe, as provided in section three thousand three hundred and twenty-three (a), the court or justice may award costs of the proceeding, not exceeding twenty-five dollars in addition to necessary disbursements, to the petitioner, payable from the estate of the incompetent person, and upon denial of an application to set the same aside, costs as of a motion.

§ 2324. Where the incompetent person has property, which may be endangered in consequence of his incompetency, and no relative or other person applies for the appointment of a committee of his property, the overseer or superintendent of the poor of the town, district, county, or city, in which he resides, or, where there is no such officer, the officer or officers performing corresponding functions under another official title, must apply to the proper court, for the appointment of such a committee. The expenses of conducting the proceedings thereupon must be audited and allowed, in the same manner as other official expenses of those officers are audited and allowed.

§ 2325. [Am'd 1891.] The petition must be in writing, and verified by the affidavit of the petitioner, or his attor ney, to the effect that the matters of fact therein stated are true. It must be accompanied with proof, by affidavit, that the case is one of those specified in this title. It must set forth the names and residences of the husband or wife, if any, and of the next of kin and heirs of the person alleged to be incompetent, as far as the same are known to the petitioner, or can, with reasonable diligence, be ascertained by him, and also the probable value of the property pos sessed and owned by the alleged incompetent person, and what property has been conveyed during said alleged incompetency and to whom, and its value and what consideration was paid for it, if any, or was agreed to be paid. 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 relatives of the person alleged to be incompetent, or to an officer specified in the last section. Wher notice is required, it may be given

in any manner which the court deems proper; and for that purpose, the hearing may be adjourned to a subsequent day, or to another term at which the petition might have been presented.

$2326. When foreign committee may be appointed. [Am'd 1898, amendment to take effect September 1, 1898.] Where the person alleged to be incompetent resides without the State and a committee, curator or guardian of his property, by whatever name such officer may be designated, has been duly appointed pursuant to the laws of any other state, territory or country where he resides, the court may, in its discretion, make an order appointing the foreign committee, curator or guardian, the committee of all or of a particular portion of the property of the incom petent person, within the State, on his giving such security for the discharge of his trust as the court thinks proper.

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