
    In the Matter of the Application of Julia M. Curtiss, an Incompetent Person, Respondent. Elmore S. Banks and John C. Shaw, as Committee of the Property Within the State of New York of Julia M. Curtiss, an Incompetent Person, Appellants.
    First Department,
    April 8, 1910.
    Incompetent persons—application for discharge of committee—procedure—new commission unauthorized—judgment—when foreign decree cannot "be attacked collaterally.
    Section 2327 of the Code of- Civil Procedure, providing for the appointment of a Commission de lunático inquirendo, applies only to the initial proceeding for the appointment of a committee of the incompetent. Where a committee has once "been appointed, no further commission can issue to determine whether the incompetent has .regained her sanity, aa alleged, -but the proceeding should be under section 2343 of the Code of Civil Procedure which empowers the court to discharge the committee where the incompetency is at an end.
    Where it has been adjudged by the courts- of this State that a foreign tribunal adjudging a person incompetent and appointing.a committee had jurisdiction, the foreign decree cannot be attacked collaterally in this State. The incompetent claiming to be restored to sanity should proceed in the foreign tribunal.
    . Appeal by Elmore S; Banks and another, as committee, etc.,' from an order of the Supreme' Court, made at the Rew York Special Term and entered in the office of .the clerk of the county of Rew York on the-16th day of March, 1910, appointing a commission and directing a writ de lunático inquirendo to issue and ' inquiry to be made by the commission with a jury as to whether the incompetent is now competent to care for herself and her property.
    
      Morgan J. O'Brien of counsel \_Oratz JVathan, attorney], for the appellants.
    
      JO. LajUn Kellogg of counsel [Alfred O. Petté with him on the brief], Kellogg <& Bose, attorneys, for the respondent. . ,
   Clarke, J.:

In July, 1907, a petition was presented to the Probate Court for the district of Fairfield, Conn., representing that Julia M. Curtiss had her domicile in and was a resident of the town of Fairfield in said disti'ict, and has property and estate in said town; that by reason of intemperance and mental derangement she had become and was incapable of managing'her affairs. Upon the 17th of August, 1907, the said Probate Court made an order finding the allegations in the said application contained to be true and appointing conservators for said Julia M. Curtiss, who accepted said trust and gave bond for the faithful discharge of their duties. On October 7, 1907, upon the application of said conservators, the Special Term of the Supreme Court in the county of New York appointed them the committee jointly of all the property of the said Julia M. Curtiss within this State. On July 9, 1909, the alleged incompetent filed a petition asking for the vacation of the foregoing order and on August 26, 1909, her application was granted by an order from which an appeal was taken to this court where it was reversed. (134 App. Div. 547.) This court said: “The principal question, therefore, in the present.case is whether or not Mrs. Curtiss was a ' resident of Connecticut. If she was domiciled there the Probate Court having jurisdiction of the subject-matter, acquired jurisdiction of her person by process issued and served as permitted by the statutes of Connecticut, and its finding and decree are conclusive here and not open to collateral attack. If She was not a resident of Connecticut neither the court there nor this court ever acquired jurisdiction to support the order which was vacated below. On the question of residence we think that the preponderance of persuasive evidence is in favor of the contention that the alleged incompetent was, in legal acceptation, a resident of Connecticut. * * * If, as we conclude, she was a resident of Connecticut, the Probate Court there had jurisdietion and its decree is conclusive here.” An appeal was taken to the Court of Appeals where the order of this court was affirmed. (197 N. Y, 583.)

A petition verified' by Mrs. Curtiss on December 6, 1909, was presented to the Special Term, which set forth that she resides in ■ the borough of Manhattan, city of New York, and is domiciled in the State of New York. She then sets up the proceedings heretofore alluded to, and alleges: “ That your pétitioner is in no way addicted to the use of intoxicating liquors, nor has she any desire therefor, nor is she in any way mentally incompetent or incapacitated, but on the contrary she is now in every respect mentally sane and perfectly competent to manage and control both her person and property,

and in fact at no time, either prior to or since the initiation of said proceedings above mentioned, has she been incompetent to manage herself or her affairs in consequence of lunacy, idiocy, habitual drunkenness or imbecility arising from old age or loss of memory and understanding, or other cause, or by reason of intemperance or mental derangement of any kind whatsoever.” And she prayed that the order of October 7> 1907, appointing the committee of her estate be wholly superseded, the committee discharged and she be restored to the full enjoyment of her person and property. Whereupon the court made an order that a commission in the nature of a writ de lunático inqtdrendo be issued and the said commissioners inquire by jury whether the petitioner is a person incompetent to manage herself or her affairs in consequence of lunacy or habitual drunkenness.

It will be seen by the petition that she challenges the decision of this court, affirmed by the Court of' Appeals, in two respects : First, as to the jurisdiction of the Probate Court of Connecticut, by alleging that she is and has at all times since the year 1890 been a resident and domiciled in the State of Hew York,.notwithstanding the fact that this court decided that at the time of the institution of these proceedings in Connecticut the Probate Court had jurisdiction of her person because she was then a resident of Connecticut; and, second, that at no time, either prior to or since the initiation of said proceedings, has she been incompetent to manage herself or her affairs, although this court held that, as the Probate Court of Connecticut had jurisdiction of her person and the subject-matter, the question of her incompetency could not be inquired into in this State in a collateral proceeding.

It will be noted also that while in her petition she prayed for a supersedeas of the order appointing the committee, the order appealed from appoints a commission in the nature of a writ de lunático inquirendo to inquire whether she is a person.incompetent to manage herself or her affairs.

The learned counsel for the respondent claims as authority for this proceeding section 2343'of the Code of Civil Procedure, which provides that, Where a person, with respect to whom a committee is appointed as prescribed in this title, becomes competent to manage himself or his affairs, the court must make an order discharging the committee of his property or the committee of his person, or both, as the case requires, and requiring the former committee to restore to him the property remaining in the committee’s hands. Thereupon the property must be restored. accordingly.” If this be authority for the supersedeas prayed in the petition, it certainly is not for the order appealed from.

The only provision for the appointment of a commission which can direct the sheriff to. summon a jury is found in section 2327 of. the Code of Civil Procedure. That applies solely to proceedings taken for the appointment of a committee of an incompetent person in the first instance. Mo such proceedings are authorized by statute where the party with respect to whom a committee has been appointed, as prescribed in title 6 of chapter 17 of the Code, claims that he has become competent to manage himself or his'affairs.

But the objection to the order appealed from goes deeper. It has been judicially determined that the Connecticut court had jurisdiction and having had-jurisdiction its order is entitled to full faith and credit, and is not to be attacked in a collateral proceeding in the courts of this State. The appointment of the committee in this State, made under section 2326 of the Code of Civil Procedure, was based upon the conclusiveness of the order of the Connecticut court and ancillary thereto. The presence of Mrs. Curtiss in this State is by leave given by the Connecticut court for temporary purposes. The respect due to the decrees of the courts of a sister State, as well as to our own previous decision, requires this court to refuse to inquire whether that court was right or wrong in its original determination that Mrs. Curtiss was an incompetent and to require her to try out the question as to whether her condition had so changed as to entitle her to be restored to the possession of her property and the control of her person by direct proceedings in the courts of Connecticut. The laws of that State provide sufficient methods of review.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Ingraham, P. J., McLaughlin, Scott and Dowling, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  