
    (67 App. Div. 138.)
    In re ASHLEY.
    (Supreme Court, Appellate Division, Second Department.
    December 23, 1901.)
    Lunatics — Committee—Petitioner’s Expenses—Funds not in Hands Op Committee.
    Under Code Civ. Proc. f 2336, providing that where a committee of the property is appointed in a lunacy proceeding the court must direct the payment by him out of the fund in his hands of the necessary disbursements of the petitioner, an order directing the payment of a part of the disbursements allowed petitioner out of funds belonging to the incompetent person, but not in the hands of the committee, is not erroneous, where the irregularity is expressly consented to by petitioner’s attorney.
    Appeal from special term, Kings county.
    
      Application by Elsie Maude Ashley for the appointment of a committee of the person and property of William D. Ashley, an alleged incompetent person. From an order directing the payment of petitioner’s disbursements, petitioner appeals.
    Affirmed.
    Argued before GOODRICH, P. J., and BARTLETT, JENKS,. WOODWARD, and HIRSCHBERG, JJ.
    Thaddeus D. Kenneson, for appellant.
    James G. Meyer, for respondent.
   PER CURIAM.

Counsel for the appellant insists that the provisions of section 2336 of the Code of Civil Procedure are mandatory, and that where a committee of the property is appointed in a lunacy proceeding the court must direct the payment by him out of the funds in his hands of the necessary disbursements of the petitioner. Assuming, without deciding, that this view is correct, there can be no doubt that the petitioner, through his or her attorney, could consent that the court direct that a part of the disbursements be paid, not out of funds in the hands of the committee, but out of other moneys belonging to the incompetent person. This is precisely what the learned judge below declares to have been done in the present case. By the order appealed from he has amended the original order by inserting therein a recital to the effect that, “by the consent of the attorney for the petitioner,” $500 of the sum allowed said petitioner is to be paid out of moneys in the hands of the Massachusetts committee. We cannot assume that this recital, carefully inserted after a full review of the occurrences attending the making of the original order, is untrue. It must represent the judge’s recollection of what occurred, stated under the sanction of his official oath; and, if such a consent was given, the petitioner cannot complain of the order, either in substance or form.

Orders affirmed, with $10 costs and disbursements.  