
    In the Matter of Mary Fox, an Alleged Incompetent Person, Appellant. Elizabeth Fox Vaden and Thomas Fox, Appellants; James J. Fox, Respondent.
    Second Department,
    April 29, 1910.
    Incompetent person — right to notice of trial of issue as to incompetency — due process of law.—jurisdiction — acts interfering with defense of incompetent.
    While the provisions of the Code of Civil Procedure regulating the trial of an issue as to alleged incompetency before a jury do not in terms require notice to be given to the alleged incompetent, except where he is confined in a State institution, such notice must, nevertheless, be given before the trial of the issue, as, otherwise, the incompetent is deprived of his constitutional right to notice of a hearing affecting his property.
    
      It seems, that preliminary notice to the incompetent is not necessary to the jurisdiction of the court, and that notice may be given at any time before proceeding to try the question of competency.
    In such proceeding the Special Term is not confined to matters set forth in the petition and affidavits in reply, but should determine the question of presumptive incompetency from all the papers before it at the time of the hearing, including those urged against the application as well as those in favor of it.
    Where notice of such proceeding was given to the incompetent as directed by the court, but her son, the petitioner, took the notice, refused to deliver it to the attorney of the-alleged incompetent and prevented him from consulting with her, it is irregular for the Special Term, although it has jurisdiction, to order the issues to be tried before a jury, as the incompetent has not had an Unrestricted opportunity to present her defense.
    Appeal by Mary Fox, an alleged incompetent person, and by Elizabeth Fox Yaden and another, children and heirs at law of Mary Fox, 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 lSth day of November, 1909, resettling an order entered in'said clerk’s office on the 25 th day of October, 1909.
    
      Frederick, N. Van Zcmdt, for the appellant Mary Fox.
    
      Macdonald De Witt, for the appellants Elizabeth Fox Yaden and Thomas Fox. - ‘
    
      John D. Fearhahe, for the respondent James J. Fox.
   Carr, J. :

This -is an appeal from an order made at Special Term in Kings county, directing a trial of issues as to the alleged incompetency of one Mary Fox before a jury at a Trial Term of this court. The proceeding in .which the order was made was instituted by the petitioner, James J. Fox, a son of the alleged incompetent, and notice of the application on the petition was .given to the various next of kin of Mary Fox. On the return day thereof, and before proceeding with the hearing on the petition, the court directed that the petition and the accompanying affidavits be served, upon the said Mary Fox, and adjourned the hearing until service thereof, with sufficient notice, upon her could be had. It appears that, in accordance with this direction, the petition and affidavits accompanying it were served upon Mary Fox, who is an old lady upwards of seventy-live years of age. Upon receiving the papers from a clerk of the petitioner’s attorney, Mary Fox turned them oyer immediately to her son, James J. Fox, the petitioner, who happened to be present • or came into the-room about' the time of the service of the papers. On the adjourned day of the hearing Mary Fox appeared through Mr. Yan Zandt as her attorney, and he on her behalf objected to any-hearing before the court on the petition and affidavits, on two grounds: First, that there had never been any service of the papers upon Mary Fox, and, second, that the petitioner, James J. Fox, had refused to deliver over to the attorney .for Mary Fox the papers which lie had received from her at the time of the alleged service, and had furthermore interfered and so thwarted him on attempting to consult with his client, Mary Fox, as to prevent him from presenting her side of the matter properly before the court. The affidavit of Mr. Van Zandt in relation to the interference with him and- his client on the part .of the petitioner, James J. Fox, is not contradicted in its material aspects. The next of kin, who were served with notice of the proceedings, presented affidavits tending to show that Mary Fox was not incompetent, and that no necessity existed for the appointment of a committee to take care of her personal property. The court, however, proceeded to make an order upon the petition and its accompanying affidavits, directing a trial of the question of the incompetency of Mary Fox' before a jury at a Trial Term of this court. While the provisions .of the Code of Civil Procedure affecting proceedings of this nature (Code Civ. Proc. §§ 2323a, 2325) do not in terms require notice of the proceedings to be given at any stage to the alleged incompetent, except where the alleged incompetent is confined in a State institution, it is, nevertheless, true that without "such notice at some stage of the proceedings before the trial of the issue as to the alleged incompetency, the court cannot acquire jurisdiction because of the constitutional requirement of due notice before one can be deprived of his property by judicial process. (Matter of Blewitt, 131 N. Y. 541; Gridley v. College of St. Francis Xavier, 137 id. 327.)

Whether it be.necessary to the jurisdiction of the court that this notice be given when the proceeding is begun by the presenting of the petition to the Special Term, or whether it be sufficient that it be given before the trial of the issues directed by the Special Term, is not involved in this appeal. It has, however, been declared in Gridley v. College of St. Francis Xavier (supra) that notice of the institution of the proceedings to the alleged incompetent was not necessary to the jurisdiction of the court if notice of the execution of the writ were given at any time to the alleged incompetent before proceeding to try the question of competency.

In the case at bar notice of the proceeding was given to the alleged incompetent under the direction of the court; the purpose to be served by that notice appears, however, to have been thwarted by the affirmative acts of the petitioner himself. Mary Fox was brought into court, but the object of bringing her into court was hampered, if not defeated, by the inexcusable interference of the petitioner with her and her .attorney, and the result was that, while she was represented in court, she was so fettered by the acts of the petitioner himself as to practically hamper, if not destroy, her rights in the initial stages of the proceeding.. The learned Special Term,' in making the order appealed from, must have felt itself bound by the opinions in Matter of Beach (23 App. Div. 411) and Matter of Milchsack (43 Misc. Rep. 586), where it was declared that in a proceeding of this nature the' court was bound to make an order directing the trial of the question of incompetency wherever the papers presented by the petitioner raise a presumption" of incompetency, and that on the question of such .presumption the matters set forth in the affidavits in opposition to the application could not be entertained.

It has been held, however, quite recently, in Matter of Burke (125 App. Div. 889) that in a proceeding of this kind the court at Special Term is not confined simply to the matter set forth in the petition and in the. affidavits presented on behalf of the petitioner, but should determine the question of presumptive incompetency from all the papers before it at the time of hearing the application, including faets.urged against the application as well as facts stated in favor of it.

W e are of opinion that the rule laid down .in Matter of Burke is the ttue rule and should be applied here. • This being the case we have in the record before us a situation in which, .by positive direction of the court, the alleged incompetent was brought into court •before the determination of the question of presumptive incom-. petency, but having been brought into Court was practically denied the opportunity of being fairly heard, which was in truth the cause of her being brought in at all. Under these circumstances, while the order of the Special Term was not without jurisdiction, it was yet irregular.

We are of opinion, therefore, that the order appealed from should be reversed, and the matter remitted to the Special Term for further action, in which care should be taken to see that- the alleged incompotent lias full and unrestricted opportunity to confer with her attorney, and to present her side of the controversy to the court without any interference from the petitioner or any one else.

Hirschberg, P. J., Woodward, Thomas and Rich, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and matter remitted to the Special Term for further consideration in accordance with opinion.  