122 N.Y.S. 468 | N.Y. App. Div. | 1910
In July, 1907, a petition was presented to the Probate Court for the district of Fairfield, Conn., representing that Julia M. Curtiss had her domicile in and was a resident of the town of Fairfield in said disti'ict, and has property and estate in said town; that by
A petition verified' by Mrs. Curtiss on December 6, 1909, was presented to the Special Term, which set forth that she resides in ■ the borough of Manhattan, city of New York, and is domiciled in the State of New York. She then sets up the proceedings heretofore alluded to, and alleges: “ That your pétitioner is in no way addicted to the use of intoxicating liquors, nor has she any desire therefor, nor is she in any way mentally incompetent or incapacitated, but on the contrary she is now in every respect mentally sane and perfectly competent to manage and control both her person and property,
It will be seen by the petition that she challenges the decision of this court, affirmed by the Court of' Appeals, in two respects : First, as to the jurisdiction of the Probate Court of Connecticut, by alleging that she is and has at all times since the year 1890 been a resident and domiciled in the State of Hew York,.notwithstanding the fact that this court decided that at the time of the institution of these proceedings in Connecticut the Probate Court had jurisdiction of her person because she was then a resident of Connecticut; and, second, that at no time, either prior to or since the initiation of said proceedings, has she been incompetent to manage herself or her affairs, although this court held that, as the Probate Court of Connecticut had jurisdiction of her person and the subject-matter, the question of her incompetency could not be inquired into in this State in a collateral proceeding.
It will be noted also that while in her petition she prayed for a supersedeas of the order appointing the committee, the order appealed from appoints a commission in the nature of a writ de lunático inquirendo to inquire whether she is a person.incompetent to manage herself or her affairs.
The learned counsel for the respondent claims as authority for this proceeding section 2343'of the Code of Civil Procedure, which provides that, “ Where a person, with respect to whom a committee is appointed as prescribed in this title, becomes competent to manage himself or his affairs, the court must make an order discharging the committee of his property or the committee of his person, or both,
The only provision for the appointment of a commission which can direct the sheriff to. summon a jury is found in section 2327 of. the Code of Civil Procedure. That applies solely to proceedings taken for the appointment of a committee of an incompetent person in the first instance. Mo such proceedings are authorized by statute where the party with respect to whom a committee has been appointed, as prescribed in title 6 of chapter 17 of the Code, claims that he has become competent to manage himself or his'affairs.
But the objection to the order appealed from goes deeper. It has been judicially determined that the Connecticut court had jurisdiction and having had-jurisdiction its order is entitled to full faith and credit, and is not to be attacked in a collateral proceeding in the courts of this State. The appointment of the committee in this State, made under section 2326 of the Code of Civil Procedure, was based upon the conclusiveness of the order of the Connecticut court and ancillary thereto. The presence of Mrs. Curtiss in this State is by leave given by the Connecticut court for temporary purposes. The respect due to the decrees of the courts of a sister State, as well as to our own previous decision, requires this court to refuse to inquire whether that court was right or wrong in its original determination that Mrs. Curtiss was an incompetent and to require her to try out the question as to whether her condition had so changed as to entitle her to be restored to the possession of her property and the control of her person by direct proceedings in the courts of Connecticut. The laws of that State provide sufficient methods of review.
The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
Ingraham, P. J., McLaughlin, Scott and Dowling, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.