In re Andrews

114 N.Y.S. 251 | N.Y. App. Div. | 1908

Gaynor, J.:

This application should have been made in the county of Mew York, and the court should have refused to hear it in the county of Bockland. A proceeding to have a person declared a lunatic, and his property and person put in the charge of a committee, has to be had in the judicial district in which such person resides, as is prescribed by section 2323 of the Code of Civil Procedure. Section 2343 provides that when the lunatic becomes competent again, the court must discharge the committee of his person and property, and restore his property to him. It does not specifically say the application therefor must be in such place of his residence, but that follows plainly enough from reading the whole title on the subject (§§ 2320-2344); and the matter is settled by judicial decision. Also, the motion should be in the original proceeding, and not in a newly entitled proceeding, as here (Matter of Porter, 34 App. Div. 147; Matter of Osborn, 74 id. 113; Matter of Bischoff, 80 id. 326). The order should be reversed and the proceeding dismissed.

Woodward, Jerks, Hooker and Miller, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and proceeding dismissed.