
    Matter of John Parke, an Alleged Lunatic.
    
    (Supreme Court—New York Special Term,
    January, 1896.)
    1. Lunatics — Application for appointment op committee— Notice.
    Notice of application for the appointment of a committee need not he given to a relative of the alleged incompetent person where the application is made hy the husband or wife of such person.
    
      %. Same.
    Where a commission in lunacy is in forcé, an application to appoint a certain person as .committee will not be' granted;
    Motion by the son of the alleged lunatic for the appointment of himself as committee.
    
      William L. Flagg, for motion.
    
      Frank Moss, opposed.
    
      
      Recéivéd too.,late for insertion in proper place.—[Reporter.
    
   Truax, J.

I am of the opinion that section 2325, of the . Code does not require notice to be given to a relative of the alleged incompetent person, when the application for 'the - appointment of committee is made by the husband or wife.'

The statute contemplates that the motion for the appointment of a committee may be made hy any person,” and. that if made by any person other than husband or wife, or a relative, notice thereof must be given to the husband or wife or to a relative. Notice is only to be given to a relative when not given to the husband or wife. In this case it was unnecessary to give notice to the wife, because she made the application.

It is to be noticed that this is not an application to set aside the commission heretofore issued herein, and that, therefore, I cannot set" that commission aside, even if it has been improperly issued. The motion is to appoint a certain person committee of the person and property of the alleged incompetent person. This I decline to "do because it has been made to appear that a commission is now in force, and on the return of that commission the matter can be brought before the court.

Motion denied, without costs.  