Opinion
June 27, 1955.
Appeal by a sister of an incompetent from an order dated January 6, 1955, insofar as it denies her motion for an order (1) to change the venue and to transfer the proceeding from Dutchess County to New York County, (2) to appoint the appellant as committee of the person of the incompetent in place and stead of the respondent Riddell, (3) to appoint the appellant as one of the committee of the property of the incompetent in place and stead of said Riddell, and (4) to vacate and set aside the order entered on July 17, 1953, authorizing and directing the retention of certain common stock as part of the incompetent's assets, until otherwise directed by the court. The same sister appeals from an order dated May 6, 1955, insofar as it denies her motion for an order to vacate and set aside an order dated July 2, 1953, except insofar as said July 2d order adjudicated the incompetency. The said order of July 2d, inter alia, adjudicated the incompetency, appointed the respondent Riddell as committee of the person, and appointed Riddell and the respondent trust company as committee of the property. Orders, insofar as appealed from, affirmed, without costs. The proceeding to obtain an adjudication as to incompetency and for the appointment of a committee was improperly instituted in the Supreme Court, Dutchess County, for the incompetent was a domiciliary of New York County. (Rules Civ. Prac., rule 286; Matter of Porter, 34 App. Div. 147; Matter of Schley, 253 App. Div. 818; Matter of Webber, 187 Misc. 674; Matter of Rothfeld v. Graves, 264 App. Div. 54, affd. 289 N.Y. 583.) However, the proceeding was not jurisdictionally void. ( Matter of Porter, supra; Matter of Schley, supra.) Under the special circumstances here, discretion was not abused in denial of the motions resulting in the orders appealed from. We find no fraudulent purpose or bad faith in the commencement of the proceeding in the Supreme Court, Dutchess County, in which county the incompetent was confined in a private institution for the care and treatment of the mentally ill. The appellant, then a resident of California, signed a petition requesting the Supreme Court, Dutchess County, for an inquiry as to competency and for the appointment of a committee. In that petition it was stated that the respondent Riddell had been the alleged incompetent's personal attorney and legal advisor for fifteen years and had her trust and confidence. No facts were presented which required his removal or the appointment of the appellant as a cocommittee. In our opinion, it was not improper in the unusual circumstances here for the committee to seek and obtain an order authorizing and directing the retention until the further order of the court of the corporate stock owned by the incompetent. (Personal Property Law, § 21, subd. 1, par. [n]; subd. 6; Civ. Prac. Act, § 1377; Matter of Collord, 273 App. Div. 1030; Matter of Sands, 286 App. Div. 857.) Wenzel, Acting P.J., MacCrate, Schmidt, Beldock and Ughetta, JJ., concur.