
    In the Matter of the Application of Penelope D. Osborn and Victor M. Osborn, Respondents, for the Substitution of a Committee of the Person and Estate of said Penelope D. Osborn. Alford W. Cooley, Committee of the Person and Estate of Penelope D. Osborn, Appellant.
    
      Proceeding to remove the committee of an incompetent—it should he a continuance of the proceeding appointing him, with the same parties.
    
    Section 2320 of the Code of Civil Procedure, which provides that, in “ all proceedings under this title for the appointment of a committee of such a person, he shall be designated ‘an alleged incompetent person;’ and after the appointment of a committee of such person, in all subsequent proceedings the lunatic, idiot, habitual drunkard or imbecile shall be designated ‘ an incompetent person,’ ” contemplates that a proceeding to remove the committee of an incompetent shall be a continuance of the original proceeding, and not an independent proceeding, and that all the parties heard on the original proceeding shall be made parties thereto.
    Appeal by Alford W. Cooley, committee of the person and estate of Penelope D. Osborn, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 19th day of May, 1902, removing the said Alford W. Cooley as committee of the person and estate of Penelope D. Osborn, and substituting Victor M. Osborn in his place and stead.
    
      H. C. Henderson, for the appellant.
    
      Robert H. Roy, for the respondents.
   Woodward, J.:

Victor M. Osborn, one of the applicants herein, on the 4th day of May, 1901, verified and presented to the Supreme Court a petition asking that a committee of the person and property of his wife, Penelope D. Osborn, be appointed and that a commission issue out of and under the seal of the said court to inquire into her apparent lunacy and incompetency. On the 6th day of May, 1901, a justice of this court made an order directing that the petition and affidavits he presented to the Supreme Court at a Special Term thereof, on the 13th day of May, 1901, and further ordered and directed that notice of such application be given to Silas Deuel, a paternal cousin, and Sarah Cutting, a maternal cousin of the said Penelope D. Osborn, of the presentation of such petition and the institution of such proceedings. The relatives mentioned in the order, and others, appeared in the proceeding by Mr. Sidney V. Lowell, and raised no-objection to the appointment of a committee of the person and estate, but they did object to the appointment of her husband as-such committee, .submitting affidavits which justified the court in reaching the conclusion that he was unfitted for- the office. On or about the 2.1st day of June, 1901, the question of the competency of said Penelope D. Osborn was inquired into before a jury, resulting in a verdict declaring, the said Penelope D. Osborn to be of unsound mind and incompetent to manage herself and her affairs j and thereafter and on or about the 13th day of July, 1901, an order was signed by a justice of this court, confirming said verdict and appointing Alford W. Cooley as committee of the person and estate of the said incompetent. Mr.. Cooley duly qualified as such committee and entered upon the discharge of the duties of his position. On or about the 1st day of April, 1902, the said incompetent and Victor M. Osborn, her husband, gave notice, in an entirely independent proceeding, upon a petition of Victor M. Osborn, and an affidavit of the said incompetent, that an application would be made on the 9th day of April, 1902, for an order removing Mi’. Cooley as committee of the person and estate of the said Penelope D. Osborn, and substituting in his place the said incompetent’s husband. Section 2320 of the Code of Civil Procedure provides that in “all proceedings under this title for the appointment of a committee of such a person, he shall be designated ‘ an alleged incompetent person ; ’ and after the appointment of a committee of such person, in all subsequent proceedings the lunatic, idiot, habitual drunkard or imbecile shall be designated an incompetent person.’ ” While it may be that the courts would not permit a technical defect in the papers to prevent intervention where injustice was apparent, we. believe that the safety of individuals and the orderly administration of justice requires that this provision of the Code should be given .effect, and that the court at Special Term should Hot, in effect,, review the determination of a prior Special Term, at least in an independent proceeding, where all of the parties who were thought necessary in the original proceeding are not brought in. If this question was determined differently in Matter of Chapman (43 App. Div. 231), it is enough to say that the case was reversed in 162 Few York, 456, upon another point, and the court say: Instead of deciding it upon the assumption of certain facts and conditions not proved, the case should have been remitted to the Special Term for a resettlement of the committee’s account. We think that should be done at this time. The respondent will then be in a position where the errors, if any, in the manner of instituting the proceeding, or the omission of necessary parties, may be remedied by the inauguration of a new proceeding or otherwise as he may be advised.” This is sufficient, at least, to suggest doubt on the part of the Court of Appeals as to the regularity of the proceeding, and warrants this court in holding that in a matter of this character it was error for the learned court at Special Term to entertain a petition which did not conform to the requirements of the Code of Civil Procedure, and to overrule the determination of a prior Special Term that the husband of the incompetent person was an improper person to act as the committee of the person or estate of such incompetent person. It is true that upon the hearing in the matter now before us the petitioner abandoned the application for a removal of the committee of' the estate, and the order only goes to the committee of the person; but we are of the opinion that the matters before the court, and which ought to have been taken into consideration, if any action was to be taken under the independent petition of Mr. Osborn, are sufficient to show that there was no reason for the removal of the committee of the person, and certainly no justification for the appointment of Mr. Osborn. It is true that by the provisions of section 2339 of the Code of Civil Procedure a committee either of the person or 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 that he may be suspended, removed, or allowed to resign, in the discretion of the court, but this is a judicial discretion, to be exercised in conformity with the rules and practice of courts, and not capriciously, and without a patient and careful hearing of all matters which legitimately bear upon the question. The petitioner, the husband of Penelope D. Osborn, stated in his original petition that she is of unsound mind and a person incompetent to manage herself or her affairs in consequence of lunacy or imbecility arising from loss of memory,” etc., and this characterization has been judicially confirmed, yet the petitioner now comes into court and declares that she is only unsound in her , mind on certain lines, and seeks to support his application for appointment as committee of her person upon the affidavit of this incompetent person, in a proceeding in which her blood relations are excluded. We are of opinion that the duty of this court toward incompetent persons demands that there be no action taken relating to the com- ; mittee of the person or property without a careful inquiry, and that ¡ to close our eyes and ears to information bearing upon the fitness ¡ of any person for the discharge of so high a trust is error, which cannot be justified by any technical rules. Penelope D. Osborn has been judicially determined to be incompetent to manage her affairs. The court is thus given jurisdiction to manage her person and estate , (Code Civ. Proc. § 2320), and it is its duty to discharge this duty ; broadly and to use every reasonable effort to determine the fitness : and competency of the person who is intrusted with the office of committee, either of the person or property of such incompetent. The Code provides that in all subsequent proceedings, after the determination of the incompetency of the person, the lunatic, idiot, habitual drunkard or imbecile shall be designated “ an incompetent person.” This contemplates a continuance of the original proceed- : ing, in which all of the parties shall be permitted to be heard, and not an independent proceeding, where all of the relatives may be . shut out from participation.

It may be important to add that at the time of the removal of Mr. Cooley as committee of the person of Penelope D. Osborn, proceedings were pending in behalf of such committee against the said Victor M. Osborri..

The order appealed from should be reversed, without costs.

All concurred, except Bartlett, J., taking no part.

Order reversed, without costs.  