78 N.Y.S. 772 | N.Y. App. Div. | 1902
The special guardian of the incompetent person was appointed by the Special Term and he has instituted this ■ proceeding for the removal of the committee. The application is principally based on the annual accounts filed by the committee, which it is claimed show unauthorized charges and disbursements by him. The appellant was appointed committee of the person and property of the incompetent person by the Supreme Court on the 15th day of December, 1897, on the petition of her father with the consent of her brother and sister, and he gave a bond in the penal sum of $10,000. He has promptly filed annual accounts and inventories in the form and manner required by law. It appears that these accounts have been regularly examined by the presiding justice of this court through the aid of a referee, who was empowered to and did take evidence. From such examinations it appeared that the committee has accounted for all of the property of the incompetent person and has filed vouchers for all disbursements and his accounts were in form approved.
The appellant contends that the proceedings had under section 2342 of the Code of Civil Procedure, by which the presiding justice of this court has examined annually as therein provided the accounts and inventories filed by the committee, constitutes'a bar to this proceeding, and he further contends that, in any event, that section prescribes the sole method for removing a committee.- We deem this contention untenable. Section 2342 of the Code of Civil Procedure, so far as it was not new, was based upon title 2 of chapter 446 of the Laws of 1874, which provided, among other things, that committees of the property of incompetent persons should file semi-annual accounts, and authorized the court appointing them to enforce compliance therewith (§§ 3, 4). The provision of the law (Laws of 1837, chap. 460 § 57) requiring general guardians appointed by a Surrogate’s Court to file annual verified inventories and accounts was
It is expressly provided in section 2339 of the Code that “ a committee either of the person or of the property (of an incompetent person) is subject to the direction and control of the court by which he was appointed with respect to the execution of his duties, and he may be suspended, removed or allowed to resign, in the discretion of the court.” Section 2342 was amended in 1895 (Chaps. 746, 946) .and in 1899 (Chap. 350) by incorporating the provision authorizing the committee with the consent of the court to render an intermediate account of his proceedings and have the same judicially .settled. This evidently was designed solely to authorize an intermediate accounting on the application of the committee, but it did mot divest the court of power under the general authority conferred by section 2339 to require such intermediate accounting whenever
The application, with the exception of some general charges contained in the petition which are altogether too indefinite to be the basis of a proceeding of this character, for the removal of the committee is founded wholly upon the annual accounts thus filed by him. It is claimed that it appears thereby that there has been a. waste of the funds .and property of the incompetent person in that, the disbursements and charges made by the committee have been unauthorized or excessive. The sole object of the proceeding is to determine; whether the committee should be removed. The petition does, not pray for, nor does the order require, a final or intermediate; judicial accounting. Yet it is manifest that, in order to determine ' whether these disbursements and charges Were authorized or excessive, the same examination would be required as to determine, whether they should be allowed on an intermediate or final accounting. If the court, on the testimony taken before the referee and his report, shall be of the opinion that the petitioner has failed to. establish cause for the removal of the committee, the estate of the incompetent will have been put to a large expense without any action .being taken that will be in any manner final, binding or profitable. No intermediate accounting will have been had, and the-items which will have been examined by the referee and court, and, perhaps, approved, may be disallowed at some future time-on-an intermediate or final accounting. If that should be the result of the proceeding it will be of no benefit or advantage to the incompetent person. If, on the other hand, the committee should be; removed and a final accounting should be required, it will involve an. examination of these matters anew. While the proceeding is authorized under section 2339 of the Code of Civil Procedure, we are of opinion that since its determination depends upon whether the disbursements and charges made by the committee as shown by his annual accounts were authorized or are excessive, an intermediate accounting should have been asked for and ordered in the first instance, and the motion, so far as it asked for the removal of the committee, should be adjourned until after such accounting. Then, if any
It follows, therefore, that the order should be reversed and the motion denied, but without costs and without prejudice to renewal.
Van Brunt, P. J., O’Brien and McLaughlin, JJ., concurred.
Order reversed and motion denied, without costs and without prejudice to renewal.