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$ 2327. [Am'd 1891, 1895, amendment to take effect.Jun urry 1, 1896.) Unless an order is made as prescribed in the last section, if it presumptively appears, to the satisfaction of the court from the petition and the proofs a companying it that the case is one of those specified in this title, and that a cowroittee ought, in the exercise of a sound discretion, to be appointed, the court must make an order directing either:

1. That a commission issue, as prescribed in the next section to one or more fit persons designated in the order, or

2. That the question of fact arising upon the competency of the person, with respect to whom the petition prays for the appointment of a committee, be tried by a jury at a trial term of the court.

3. When it satisfactorily appears from the petition and accompanying affidavits that any person or persons having acquired from the alleged incompetent person, real or per sonal property during the time of such alleged incompeteney without adequate consideration, the court may issue an order, with or without security restraining such person or per. sons from selling, assigning, disposing of or incumbering said property, or confessing judgment which shall become a lien upon said property during the pendency of the proceed. ing for the appointment of a committee, and said order may in the discretion of the court be continued for ten days after the appointment of such committee. Notice of the execution of the commission shall be given to the person or persons enjoined in snch wanner as the court may direct.

$ 2328. The commission must direct the commissiovers to cause the sheriff of a county specified therein, to procure a jury; and that they inquire, by the jury, into the matters set forth in the petition; and also into the value of the real and personal property of the person alleged to be incompe. tent, and the amount of his income. It may contain such other directions, with respect to the subjects of inquiry, or the manner of executing the coin mission, as the court directs to be inserted therein.

$ 2329, Each comunissioner, before entering upon the execution of his duties, must subscribe and take, before one of the otňcers specified in section eight hundred and forty. two of this act and file with the clerk, an oath, faithfully, honestly, and impartially to discharge the trust committed to him. If a commissioner becomes incompetent, or neglects or refuses to serve, or removes from the State, the court may remove him. The court may, arom time to time, fill any vacancy created by death, removal, or resignation.

$ 2330. [Amd 1895, amendment to take effect January 1, 1896.] The commissioners, or a majority of them, must'immediately issue a precopt to the sheriff, designated in the commission, requuing him to notify, not less than twelve nor more than twenty-four indifferent persons, qualified to serve, and not exempt from servii g, as trial jurors in the siime court, to appear before the commissioners, at a speci. fied time and plae, within the county, to make inquiry, as

commanded by the commission. The sheriff mast notify the jurors accordingly; and must return the pricept, and the names of the persons notified, to the commissioners, at the time and place specified in the precept The commissioners, or a majority of ihem, must determinc a challenge made to a juror. Upon the failure to attend. of a person who has been duly notified, his attendance may be compel el; and he may be punished by the court for a contempt, as where a juror, ruly notified, fails to attend at atrial term of the court, The commissioners may require a sheriff to cause a talesman to attend, in place of a juror notified, and not attending, or who is excused or discharged; or they may adjourn the proceedings, for the purpose of punishing the defaulting juror, or compelling his attendance. But it is not nece-sary to cause any talesman to attend, if at least twelve of the persons, notitied by the sheriff, appear and are sworn.

$ 2331. All the commissioners must attend and preside at the hearing, and they or .t majority of them, have, with respect to the proceedings upon the hearing, all the power and authority of a judge of the court, holding a trial term, subject to the directions containedin the commission. Either of the commissioners may administer the usual oath to the jurors. At least twelve jurors must concur in a finding. If twelve do not concur, the jurors must report their disagreement to the commissioners, who must thereupon discharge them, and issue a new precept to the sheriff, to procure another jury.

$ 2332. The inquisition must be signed by the jurors concurring therein, and by the commissioners, or a majority of them, and annexed to the commission. The commission and inqnisition must be returned by the commissioners, and filed with the clerk.

$ 23:33. The commissioners are entitled to such compen. sation for their services, as the court directs.

The jurors are entitled to the same compensation, as jurors upon the trial of an issue in an action in the same court.

The petitioner must pay the compensation of the commissioners, sheriff, and jurors.

$ 2334. (Am'd 1895, amendment to take effect January 1, 1895.) Where an order is made, directing the trial, by a jury, at a trial term of the questions of fact, arising upon the competency of the person, with respect to whom the petition prays fir the appointment of a committee, the order must state, vistinctly and plainly, the questions of fact to be tried; which may be settled as where an order for a similar trial is made in an action. The court may, in th it or in a subsequent order, direct that notice of the trial be given to such persons, and in such a manner as is deemed proper. The trial must be revieweil in the same manner, with like effect, und, except as otherwise directed in the order, the proceedings

286.

720.

24 N. Y.

834.

104.

thereupon are, in all respeots, the same, as where questions of fact are tried, pursuant to an order for that purpose. The cou t may make inquiry, by means of a reference or other wise, as it thin's proper, with respect to any matter, not in. volved in the questions tried by the jury, the determination of which is necessary in the course of the proceedings. The expenses of the trial, and of such an inquiry, must be pati

by the petiiicner. 27 Hun, 480. $ 2.35. [Am'd 1895, amenilment to tuke effect January 1, 20 Abb. N.C. 1896.] Where the petition alleges that the person, with re6 N.Y. Supp.

spect to whom it prays for the appointment of a committee, is incompetent, by reason of lunacy, the inquiry with respect to his competency, upon the execution of a commission, or the trial at a trial term, as prescribed in this title, must be confinel to the question, whether he is so incompetent, at the time of the inquiry; and testimony respecting anything said or dono by him, or his demeanor or state of mind more than two years before the hearing or trial, shall not be received as proof of lunacy, unless the court otherwise speci. ally directs, in the order granting the commission, or direct

ing the trial by jury. 51 Hun, 138. $ 2336. Upon the return of the commission, with the in. State Rep.

quisition taken thereunder, or the rendering of the verdict

of the jury, upon the questions submitted to it by the order 26 App. Div. for a trial by å jury, the court must either direct a new trial

or hearing, or make such a final order upon the petition, as justice requires. Where a final order is made, dismissing a pətition, the court may, in its discretion, award in the order a fixed sum, as costs, not exceeding fitty dollars and disburseinents, to be paid by the petitioner to the adverse party. Where a committee of the property is appointed, the court must direct the payment by him, out of the funds in his hands, of the necessary disbursements of the petitioner, and of such a sum, for his costs and counsel fees, as it thinks resouable; and it may, in its discretion, direct the committee to pay a sum, not exceeding fifty dollars and disbursements, to the attorney for any adverse party.

$ 2336 (a). [Added 1895.) Sections two thousand three hundred and twenty-five to two thousand three hundred and thirty-six, both inclusive, of this title shall not apply to ap. plications for the appointment of a committee made by it on bebalf of the State to secure reimbursement, in whole or in part. for maintenance and support in a State institution.

$ 23:37. [Am'd 1887.) The provisions of article first of tiile seventh and section two ihousand five hundred aud ninety-five of article fifth of title second of chapter eighteenth of this act, respecting the security to be given by the guard. ian of the person or of the property of an infant, appointed by a surrogate's court, apply to a committee of the person or of th property, appointed as prescribed in this article. A committee of the property cannot enter upon the execution of his (mies, until security is given as prescribed by the court. A committee of the person cannot enter upon the execution of his duties until security is given, if required by the court.

370.

$ 2338. [ Am'd 1890, 1895, amendment t tahe effect January 1, 1896.] A committee or the property is entitled to the same oompensasion as an executor or admiuistrator. But in is, eciilinse where his services exceed those of an executor or administrator, the supreme court or a county court within the county my allow him such an additional compensation firsich additional services as it deems just. The compensa. tion of a commitee of the person must be fixed by the court anı paid by the committee of the property, if any, out of the funds in his hands. The additional compensation authorized by this section may be allowed to the committee upon any judicial settemcut mare by bim, and shall be for such addi. ti nil nerv.ces up to and including such settlement. 2-339. A committee, either of the person or of tie

75 Hun, 400; property, is subject to the dirt ction and control of the court 6 Misc. 503. by wbich he was appointed, with respect to the execution of bis duties; and he may be suspended, removed, or allowed to resign, in the dis retion of the court. A vacancy created by deatli, removal, or resignation, may be filled by the court. But a committee of the property (annot ulien, mort:rage or otherwise dispo e real property, except to lease it for a term not exce ding five years, without the special direction of the court, obtained upon proceedings taken for that purpose, as prescrib din tiile seventh of this chapter.

$ 2310. A committee of tue property, appointed as pre. 13 Civ. Pro. scribed in this title way maintain, in his own name, adding his official title, any action or special proceeding, which the

3 App. Div. person, with respect to whom he is appointed, might bave 90 Hun, 501, maintained, if the nppointment had not been made.

72341. (Amd 1894.] Thu provisions of article two of title seven ot chapter eighteen of this act, requiring the gen. eril guardian of an infant's property, appointed by a surro. Late's court, to file in the month of Janury in each year an inveutory, account and affidavit and prescriling the form of the papers so to be filel, apply to il committee of the property appointed, as pres ·ribed in this title.

For the purpose of making that ap: lication the committee is deebied a general gurdian of the property; the per-on with respect to whom be is appointed, is deemed a ward and the papers must be filed ii the office of the clerk of the court by which the com. mittee · as appointed, or if he was appointed by the supreme court, in the clerk's office where the order appointing him is enterei. In every wise where i committee has used or employed th: services of an incompetent person, with r. spect to whom he his l een appoinied a committee, or where mobeys have b en erned by or received on behalf of such incompetent person, the conmittee must account for any moneys so earned or derived from such services, the same as for other property or assets of t'eincompetent per-on.

$ 2342, Committee of property may be compelled to file accounting ; voluntary accounting[m'd' 18.95, 1999, ane dment t'i take effect Septemb.r 1, 1819.)-In the mouth of P-ruary of each year, the presiding judge of the court, ly wuich the commi tee of the property was appointed, or if be was appointed by the supreme court, the county judge of the county where iheoriler appointing him is entered, must

391,

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esamine, or cause to be examined under his dire tion, all accints and inventories filed by committees of the person and prop.rty, since the first day of February of the preceding year. If it appears, upon the examination, that a committre, appointed as prescribed in this title, has omitted to file his annual inventory or accounting, or the affidavit relating thereto, as prescribed in the last section ; or if the judge is of the opinion that the interest of the person, with respect to whom the committee was appointed, requires that he should render a more full or satisfactory inventory or ac. count, the jurige must make an order requiring the commit. tee to supply the deficiency, and also, in his discretion personally to pay the expense of serving the order upon bim. An order so made may be entered and enforced, and the failure to obey it may be punished, as if it were made by the court. Where the committee fails to comply with the order, wi bin three months after it is made, or, where the judge has reason to believe that sufficient canse exists for the removal of the committee, the judge may, in his discretion, appoint a fit p 'rson special guardian of the incompetent person with respect to whom the committee was appointed, for the purpose of filing a petition in his behalf for the re. moval of the committee and prosecuting the necessary pri. ceedings for that purpose. The committee may be compelled in the discretion of the court, to pay personally the costs of the proceedings so instituted. The committee of the property of an incompetent person appointed a3 prescribed in this title, may at any time in the discretion of the court making such appointment, render to such court an intermediate judicial account of all his proceedings aftecting the property of the incompetent person to the date of the filing thereof; and paid account shall be then judicially adjustec, determiued and filed ; and the same sunil be in all respects a final judicial account of the proceedings of said committee affecting said property to that time. Notice of the application for such intermeaiate accounting shall be given in the manner in which and to the persons to wbom notice of application for the appointment of a committee of the person or property of an alleged lunatic, idiot or habitnal drunkard is required to be given by title six of chapter sev. enteen of the code of civil procedure. The court shall have power and it shall be its d ty to appoint a suitable person as special guardian of the incompetent person for the protection of his rights and interests in said proceedings.

$ 2313. Where a person, with respect to whom a committee is appointed, as prescribed in this title, becomes com net-nt to manage himself or his affairs, the court must make an oriler, discharging the coinmittee of his property, or the committee of his person, or both as the case requires; and requiring the former committee to re-tore to him the property remaining in the committee's hands. Thereupon the property must be restored accordingly.

$ 2:44, Where a person of whose property a committee State Rep. 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 dis posed of, as it a committee had not been appointed.

438 N. Y. 150.

17 N Y

283.

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