(162 App. Div. 888)

#### In re PENFIELD.

(Supreme Court, Appellate Division, Second Department.

June 26, 1914.)

1. Insane Persons (§ 33*)—Inquisitions—Findings—Sufficiency.

Under Code Civ. Proc. § 2320, providing that the jurisdiction of the Supreme Court extends to the custody of the person and care of the property of one incompetent to manage himself or his affairs by reason of lunacy, idiocy, habitual drunkenness, or imbecility from age, loss of memory, and understanding, or other cause, a finding of incompetency, with- • out any finding of its cause, will not support the appointment of a committee.

[Ed. Note.—For other cases, see Insane Persons, Cent. Dig. §§ 44r-46, 48, 50, 51, 59; Dec. Dig. § 33.*]

2. Insane Persons (§ 33*)—Inquisitions—Review.

Where, in proceedings for the appointment of a committee of the person and property of an alleged incompetent, the Supreme Court appointed a committee of the property of the alleged incompetent, on the jury specifically finding that she was incompetent and incapable of managing her property, but not incapable of managing her person, the matter will be remitted to the Supreme Court for further proceedings.

[Ed. Note.—For other cases, see Insane Persons, Cent. Dig. §§ 44-46, 48, 50, 51, 59; Dee.-Dig. § 33.*]

*440Appeal from Special Term," Westchester County.

Application for the appointment of a committee of the person and property of Susan A. Penfield, an alleged incompetent. From an order denying a motion to set aside an order appointing a committee of the property of the alleged incompetent, her brother appeals.

Reversed, and motion to vacate order appointing committee granted, and matter remanded.

Argued before BURR, THOMAS, CARR, RICH, and STAPLETON, JJ.

Gerard Roberts, of New York City (Clinton T. Taylor, of White Plains, on the brief), for appellant.

Thomas A. McKennell, of New York City, for Susan A. Penfield.

Mortimer Brenner, of New York City (Leventritt, Cook & Nathan, of New York City, and I. H. Lehman, on the brief), for respondents.

*

For other cases see same topic *&*§ number in Dec. *&*Am. Digs. 1907 to date, & Rep’r Indexes

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 annointing 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. • ■ -

[1] 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, he argues that the jury did not find that Miss Penfield was incompetent to manage herself or hey affairs in consequence of lunacy, idiocy, habitual drunkenness, or imbecility arising from old age o-r loss *441of 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, 119 N. Y. Supp. 556, 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 the Matter of Clark, 175 N. Y. 139, 67 N. E. 212. 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.

[2] I think the same course should be followed here as was pointed out by the Court of Appeals in the 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 $10 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. All concur.