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§ 2337. [Amended, 1887.] Security to be given by committee. The provisions of article first of title seven and section two thousand five hundred and ninety-five of article fifth of title second of chapter eighteenth of this act, respecting the security to be given by the guardian 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 the property, appointed as prescribed in this article. A committee of the property cannot enter upon the execution of his duties, 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.
New. See 2 2829-2831, post. Matter of Paige, 7 Daly, 155; Matter of Livingston, 1 Johns. Ch. 436; Matter of Taylor, 9 Paige, 611; Matter of Lamoree, 19 How. 375; 8. c., 11 Abb. Pr. 274; 32 Barb. 122; see 2 Barb, Ch. Pr. 237; In re Frank, 2 Russ. 450; Matter of White, 1 Barb. Ch. 43.
§ 2338. [Amended, 1895.] Compensation of committee. A committee of the property is entitled to the same compensation as an executor or administrator. But in a special case, where his services exceed those of an executor or administrator, the supreme court or a county court within the county may allow him such an additional compensation for such additional services, as it deems just. The compensation of a committee of the person must be fixed by the court, and 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 settlement made by him, and shall be for such additional services up to and including such settlement.
In effect Jan. 1, 1896; L. 1895, ch. 946.
See Laws 1890, ch. 516; Parsee Merchants' Case, 11 Abb. N. S. 209: Matter of Colah, 6 Daly, 51; Matter of McAdams, 19 Hun, 292; Matter of Clapp, 20 How. 385; see Matter of Livingston, 9 Paige, 446; Clinch v. Eckford, 8 id. 412; Matter of Bank of Niagara, 6 id. 213; Vanderheyden . Vanderheyden, 2 id. 287; Matter of Burr, 17 Barb. 9; Pharis v. Ġere, 110 N. Y. 336.
§ 2339. Committee under control of court; limitation of powers.-A committee, either of the person or of the property, 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. A vacancy created by death, removal, or resignation may be filled by the court. But a committee of the property cannot alien, mortgage, or otherwise dispose of, real property, except to lease it for a term not exceeding five years, without the special direction of the court, obtained upon proceedings taken for that purpose, as prescribed in title seventh of this chapter.
Beach v. Bradley, 8 Paige, 146; Matter of Carter, 3 id. 146; Matter of Miller, 15 Abb. 277; Matter of Lytle, 3 Paige, 251; Matter of Griffin, 5 Abb. N. S.
96; Matter of Burr, 17 Barb. 9, 14; s. c., 2 Barb. Ch. 208; Matter of Salisbury, 3 Johns. Ch. 347; Parsee Merchants' Case, 11 Abb. N. S. 209; S. C., 3 Daly, 529; Matter of Heeney, 2 Barb. Ch. 326; Peckersgill v. Reade, 5 Hun, 170; Ex parte Parker, 6 Alb. L. J. 324; Martin v. Wind. sor Hotel Co., 70 N. Y. 101.
*§ 2340. Committee of property may maintain actions, etc.-A committee of the property, appointed as prescribed in this title, may maintain, in his own name, adding his official title, any action or special proceeding, which the person, with respect to whom he is appointed, might have maintained, if the appointment had not been made.
Part of 5 of act of 1874, amended. Davis v. Carpenter, 12 How. 287; Thomas v. Bennett, 58 Barb. 197, 201; McKillip v. McKillip, 8 id. 552; Person v. Warren, 14 id. 488; Ex parte Wing, 2 Hun, 671; 8. c., 5 S. C. 205; Burnett v. Bookstaver, 10 Iun, 481.
§ 2341. [Amended, 1894.] Id.; to file inventory and account. - The provisions of article two of title seven of chapter eighteen of this act, requiring the general guardian of an infant's property, appointed by a surrogate's court, to file in the month of January in each year an inventory, account and affidavit and prescribing the form of the papers so to be filed, apply to a committee of the property appointed, as prescribed in this title. For the purpose of making that application the committee is deemed a general guardian of the property; the person with respect to whom he is appointed, is deemed a ward and the papers must be filed in the office of the clerk of the court by which the committee was appointed, or if he was appointed by the supreme court, in the clerk's office where the order appointing him is entered. In every case where a committee has used or employed the services of an incompetent person, with respect to whom he has been appointed a committee, or where moneys have been earned by or received on behalf of such incompetent person, the committee must account for any moneys so earned or de rived from such services, the same as for other property or assets of the incompetent person.
In effect February 23, 1894; Laws 1894, ch. 51.
2342. [Amended, 1895.] Id.; may be compelled to file the same, or render an additional account, etc. In the month of February of each year, the presiding judge of the court, by which the committee of the property was appointed, or, if he was appointed by the supreme court, the county judge of the county where the order appointing him is entered, must examine, or cause to be examined under his direction, all accounts and inventories filed by committees of the person and property, since the first day of February of the preceding year. If it appears, upon the examination, that a committee, appointed as prescribed in this title, has
* See ante, § 429; § 426, subd. 2; §§ 427-8, 1755.
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 account, the judge must make an order, requiring the committee to supply the deficiency, and also, in his discretion, personally to pay the expense of serving the order upon him. 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, within three months after it is made or, where the judge has reason to believe that sufficient cause exists for the removal of the committee, the judge may, in his discretion, appoint a fit person 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 removal of the committee and prosecuting the necessary proceedings 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 as 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 affecting the property of the incompetent person to the date of the filing thereof; and said account shall be then judicially adjusted, determined and filed; and the same shall 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 intermediate accounting shall be given in the manner in which and to the persons to whom notice of application for the appointment of a committee of the person or property of an alleged lunatic, idiot, or habitual drunkard is required to be given by title six of chapter seventeen of the code of civil procedure. The court shall have power and it shall be its duty, if, in its discretion, the interests of the person with respect to whom the committee was appointed, require it, to appoint a suitable person as special guardian of the incompetent person for the protection of his rights and interests in said proceeding.
In effect Sept. 1, 1895; L. 1895, ch. 746, superseding amendment in ch. 946. See ch. 946, § 4.
L. 1874, ch. 446, § 4, amended; see § 2844, post. Monell v. Monell, 5 Johns. Ch. 283; Hay v. Warren, 8 Paige, 609.
§ 2343. Property, when to be restored.-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, as the case requires, and requiring the former committee to restore to him the property, remaining in the committee's hands. Thereupon the property must be restored accordingly.
Id., § 28, amended; 2 Barb. Ch. Pr. 239; Matter of Hoag, 7 Paige, 312; Matter of Hanks, 3 Johns. Ch. 567; Matter of Burr, 3 Barb. Ch. 208; Matter of McFarlane, 2 Johns. Ch. 440.
§ 2344. Id.; disposition in case of death.Where a person, of whose property a committee has been appointed, as prescribed in this title, dies during his incom
petency, the power of the committee ceases; and the property of the decedent must be administered and disposed of, as if a committee had not been appointed. Id., 29 and 25, amended by L. 1865, ch. 724 (6 Edm. 581).
Proceedings for the disposition of the real property an infant, lunatic, idiot, or habitual drunkard.
Sao. 2345. Action to compel conveyance.
2346. Who may maintain action.
2347. Judgment; effect thereof.
2348. Application to dispose of real property; in what cases.
2350. Contents of petition.
2351. Bond of committee of lunatic, etc.
2352. Id.; of guardian of infant.
2353. Bond; how prosecuted.
2354. Reference to inquire into the application.
2356. Report of sale, etc.
2357. Certain sales, etc., prohibited.
2358. Effect of conveyance, etc.
2359. Proceeds of sale deemed real property.
S2345. Action to compel conveyance.- In either of the following cases, an action may be maintained against an infant, or a person incompetent to manage his affairs by reason of lunacy, idiocy, or habitual drunkenness, to procure a judgment, directing a convey. ance of real property, or of an interest in real prop erty:
1. Where the infant or incompetent person is seized or possessed of the real property, or interest in real property, by way of mortgage, or only in trust for another.
2. Where a valid contract for the sale or conveyance of the real property, or interest in real property, has been made; but a conveyance thereof cannot be made, by reason of the infancy or incompetency of the person in whom the title is vested.
2R. S. 55, 20, 22 (2 Edm. 56); L. 1874, ch. 446, 9, 23-26 (9 Edm. 931, 933), amended; L. 1875, ch. 574, 83 7 and 8; 2 R. S. 194, ch. 1, 167, 169 (2 Edm. 202). Brasher v. Cortlandt, 2 Johns. Ch. 400; 8.c., id. 242.
§ 2346. [Amended, 1882.] Who may maintain action. -An action may be maintained, in a case specified in the last section, by a person entitled to the conveyance; and, also, in a case specified in subdivision second of that section, by the executor or administrator of the person who made the contract, or of a person who died seized or possessed of the real property, or interest in real property, or by an heir or devisee of either of those persons, to whom the real property has descended, or was devised. The action may be maintained by the committee of the lunatic or other incompetent person; but in that case the court must appoint a special guardian for the incompetent person as prescribed by law, where an infant is defendant, and the proceedings are the same as in a like action against an infant.
Id., R. S., and laws as above.
§ 2347. Judgment; effect thereof.-A judgment, directing such conveyance, shall not be rendered unless the court, after hearing the parties, is satisfied that the convey ance ought to be made. Upon rendering final judgment to that effect, the court has power to direct the guardian of the infant's property, or the committee of the property of the lunatic or other incompetent person, or a special guardian appointed in the action, to execute any conveyance, or to do any other act, which is necessary, in order to carry the judg→ ment into effect.
2 R. S. 194, 169, and 2 R. S. 55, ch. 5, 19 (2 Edm. 56). Brasher v. Cortlandt, 2 Johns. Ch. 400; s. c., id. 242.
§ 2348. [Amended, 1893.] Application to dispose of real property; in what cases.-In either of the following cases real property, or a term, estate or other interest in real property, or an inchoate right of dower in real property, belonging to an infant or a person incompetent to manage his affairs, by reason of lunacy, idiocy or habitual drunkenness, may be sold, conveyed, mortgaged, released or leased, as prescribed in the following sections of this title:
1. Where the personal property, and the income of the real property, of the infant or incompetent person, are, together, insufficient for the payment of his debts, or for the maintenance and necessary education of himself and his family.
2. Where the interests of the infant or incompetent person require, or will be substantially promoted by such disposition, on account of the real property, or term, estate, or other interest in real property, being exposed to waste or dilapidation; or being wholly un