#### In the Matter of the Application for the Appointment of a Committee of the Person and Property of Susan A. Penfield, an Alleged Incompetent Person. Thomas D. Penfield, Petitioner, Appellant; Susan A. Penfield and Others, Respondents.

Second Department,

June 26, 1914.

Incompetent persons — findings prerequisite to appointment of committee — practice.

A committee of the property of an alleged incompetent cannot be appointed where the jury merely finds that she is “ incapable of governing and managing her property,” but that she is not incapable of managing her person. There must be a finding of some of the forms of incompetency enumerated in section 2320 of the Code of Civil Procedure, to wit, lunacy, idiocy, habitual drunkenness, imbecility arising from old age, or loss of memory or understanding. The words “or other cause” relate to the preceding specifications.

Application for the appointment of a committee remitted to the Supreme Court for such proceeding as it, in the exercise of its discretion, shall deem proper under the provisions of section 2327 of the Code of Civil Procedure.

Appeal by the petitioner, Thomas D. Penfield, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 3d day of June, 1914.

*Gerard Roberts (Clinton T. Taylor*and *William W. Penfield*with him on the brief], for the appellant.

*Thomas A. McKennell,*for Susan A. Penfield.

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      *Mortimer Brenner [Leventritt, Cook & Nathan, I. H. Lehman*and *Edwin L. Ford*with him on the brief], for the respondents.

Carr, J.:

This is an appeal from an order of the Special Term in Westchester county that denied a motion to set aside a previous order made by said court appointing a committee of the property of one Susan A. Penfield. The appellant is the brother of the alleged incompetent. In 1913 he presented a petition to the Supreme Court in Westchester county to procure an order adjudging his sister incompetent to manage her affairs. This petition was accompanied by affidavits of various physicians, and on it an order was made directing a trial of the question of incompetency by jury at one of the Trial Terms of the court. Such a trial was had, and four specific questions were submitted to the jury for answer. The first of them is the one of importance in this controversy. It reads as follows: “ Is the said Susan A. Penfield an incompetent person and incapable of governing and managing her property ? ” which the jury answered in writing “Yes.” To the fourth question, “Is Susan A. Penfield an incompetent person, incapable of managing her person?” the jury answered “No.” The report of the inquisition by the jury was affirmed at Special Term, and by an order made on June 12, 1913, the County Trust Company of Westchester county was appointed the committee of the property of the alleged incompetent. This motion to set aside the order last mentioned is based upon the ground that the findings of the jury were insufficient to justify the appointment of a committee by the court. The jurisdiction of the Supreme Court in this matter arises from the declarations and limitations made in section 2320 of the Code of Civil Procedure in language as follows: “The jurisdiction of the Supreme Court extends to the custody of the person, and the care of the property, of a person incompetent to manage himself or his affairs, in consequence of lunacy, idiocy, habitual drunkenness, or imbecility arising from old age or loss of memory and understanding, or other cause.” To put the contention of the appellant in as brief terms as possible, *890he argues that the jury did not find that Miss Penfield was incompetent to manage herself or her affairs in consequence of lunacy, idiocy, habitual drunkenness, or imbecility arising from old age or loss of memory and understanding, or other cause. He argues that the words “or other cause” have necessarily relation to the preceding specifications. This contention is supported by the reasoning of Scott, J., in *Matter of Curtiss*(134 App. Div. 547), and independently of that authority has a substantial basis in reason. In my judgment, this matter is squarely within the decision of the Court of Appeals in *Matter of Clark*(175 N. Y. 139). If so, then the court was without power, on the findings of the jury in the form in which they were made, to proceed to the appointment of a committee of the alleged incompetent. The order appealed from should be reversed, and the motion to vacate the order appointing the committee be granted. I think the same course should be followed here as was pointed out by the Court of Appeals in *Matter of Clark,*that is, the entire matter should be remitted to the Supreme Court in Westchester -county for such further proceeding or trial as that court in the exercise of its discretion shall deem proper under the provisions of section 2327 of the Code of Civil Procedure.

The order appealed from is, therefore, reversed, with ten dollars costs and disbursements, the motion to vacate the order appointing the committee is granted, without costs, and the matter is remitted to the Supreme Court in Westchester county for such further proceeding or trial upon application as that court in the exercise of its discretion shall deem proper under the provisions of section 2327 of the Code of Civil Procedure.

Burr, Thomas, Rich and Stapleton, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, motion to vacate the order appointing the committee granted, without costs, and matter remitted to the Supreme Court in Westchester county for such further proceeding or trial upon application as that court, in the exercise of its discretion, shall deem proper under the provisions of section 2327 of the Code of Civil Procedure.