
    In the Matter of the Appointment of a Committee of the Person and Property of Norman W. Roe, an Alleged Incompetent Person. George R. Dare, Appellant-Respondent; Albert Felix, Respondent-Appellant; Carl S. Forsythe et al., Respondents.
    Argued November 26, 1968;
    decided February 20, 1969.
    
      Arthur E. McInerney and Frederick M. Schlater for appellant-respondent.
    I. As a matter of law, Special Term should have declined to exercise jurisdiction. (Matter of Clarkson, 186 App. Div. 575,227 N. Y. 599; Matter of Beechwood, 142 Misc. 400; 
      Matter of Winter, 44 Misc 2d 967; Matter of Bischoff, 80 App. Div. 326; Matter of McKitterick, 286 App. Div. 885; Matter of Crichton, 20 N Y 2d 124; Matter of Hernandez, 172 App. Div. 467, 219 N. Y. 566; Reichenback v. Corn Exch. Bank Trust Co., 249 App. Div. 539.) II. Each of the committee was disqualified as a matter of law by having adverse interests to the incompetent’s estate. (Matter of Browning, 248 App. Div. 97; Matter of Quinby, 175 App. Div. 898; Matter of Rice, 22 A D 2d 339; Kuphal v. Kuphal, 177 Misc. 255; Matter of Berman, 21 A D 2d 136.) III. The propounding of the alleged designation under section 101-a of the Mental Hygiene Law, which was not executed in compliance with the statute, is sufficient of itself to disqualify Carl S. Forsythe as committee. (Matter of Hawley, 6 A D 2d 594; Matter of Satterlee, 281 App. Div. 251; Matter of Putnam, 257 N. Y. 140; Cowee v. Cornell, 75 N. Y. 91.) IV. Special Term had no jurisdiction because the order was not timely served on respondent-appellant. V. The hearing was not a full and impartial trial wherein the next of kin were given the opportunity to investigate facts and present evidence. (Meaney v. Loew’s Hotels, 26 A D 2d 263.) VI. The allowances to all parties were excessive as a matter of law. (Matter of Mayer, 19 A D 2d 885; Matter of Berman, 21 A D 2d 136; Matter of Rice, 22 A D 2d 339.)
    
      Mario Matthew Cuomo for Carl S. Forsythe and others, respondents.
    I. None of the questions sought to be raised by appellant are properly reviewable in this court. (Reichenback v. Corn Exch. Bank Trust Co., 249 App. Div. 539; Goldfeder v. Greenberg, 189 App. Div. 184; Matter of Peekamose Fishing Club, 151 N. Y. 511; Smith v. Brown Bros. Co., 196 N. Y. 529; Matter of McCarthy, 304 N. Y. 601; Matter of Kalthoff, 298 N. Y. 458; Matter of Wade, 296 N. Y. 244; Matter of Putnam, 257 N. Y. 140; Matter of Watson, 131 N. Y. 587; Hewlett v. Elmer, 103 N. Y. 156.). II. Even assuming the question is reviewable here, no reversible error was created by the refusal of the court to change the venue from New York to Suffolk County in the midst of the proceeding and after appellant had joined in the finding of incompetency. Appellant waived the right to demand the change. (Matter of McKitterick, 286 App. Div. 885; Matter of Porter, 34 App. Div. 147; Matter of Glasser, 180 Misc. 311; Crawford Bros. v. Holdridge 208 Misc. 447;
    
      
      Republic Aviation Corp. v. Republic Lodge No. 1987,10 Misc 2d 783; Reichenback v. Corn Exch. Bank Trust Co., 249 App. Div. 539.) III. There was a reasonable basis for the choice of New York County. (Matter of Clarkson, 186 App. Div. 578, 227 N. Y. 599; Matter of Bischoff, 80 App. Div. 326; Matter of Winter, 44 Misc 2d 967; Matter of Beechwood, 142 Misc. 400; Hammerman v. Louis Watch Co., 7 A D 2d 817; Black v. Black, 26 Misc 2d 579, 13 A D 2d 723.) IV. The selection of petitioner and Mrs. G-otfredsen to serve on the committee was a sound and proper one which conformed completely with the incompetent’s best interests as well as his own previous choice. The fees, awarded to the attorneys for petitioner were not excessive. (Matter of McCarthy, 279 App. Div. 716, 304 N. Y. 601.) V. The untimely service of the order to show cause did not deprive the court of jurisdiction on the motion to confirm, nor was appellant deprived of a fair hearing. (Todd v. Gull Contr. Co., 22 A D 2d 904; Miot v. JoCarl Realty Corp., 20 A D 2d 664; Berford v. Wetmore. 119 N. Y. 638.)
    
      Philip O. Eisenberg, respondent in person.
    I. The appointment of the committee was a proper exercise of judicial discretion by the court. (Matter of Rothman, 263 N. Y. 31; Matter of West, 13 A D 2d 599; Matter of Rice, 22 A D 2d 339; Matter of Kalthoff, 298 N. Y. 458.). II. The allowances fixed by Special Term were most reasonable under the circumstances.
    
      John J. Mooney, in person, and as guardian ad litem for William B. Owen III, respondent.
    I. The appointment of a committee by Special Term, affirmed by the Appellate Division, is not a litigable issue in this court. (Matter of McCarthy, 304 N. Y. 601; Matter of Kalthoff, 298 N. Y. 458; Matter of McCarthy, 279 App. Div. 716.) II. The court below in affirming Special Term’s retention of venue acted within its sound discretion. (Jensen v. Union Ry. Co., 260 N. Y. 1; Matter of McKitterick, 286 App. Div. 885.) III. Allowances fixed by Special Term and affirmed by the Appellate Division may not properly be reviewed by this court. (Caristo Gonstr. Corp. v. Diners Fin. Corp., 21 N Y 2d 507; Matter of McCarthy, 304 N. Y. 601; Matter of Kalthoff, 298 N. Y. 458.)
    
      Albert Felix, as commissioner, pro se, and Allen S. Stim for Albert Felix, respondent-appellant.
    The award by Special Term of a fee of $2,500 to the commissioner for .services rendered was fair and reasonable and such award should not have been modified by the Appellate Division. (Matter of Berman, 24 AD 2d 432.)
    No appearance for Edward Klane, Oscar Pelzman and Sidney Stark, respondents.
   Per Curiam.

The proceeding should be transferred to the appropriate Special Term in the Tenth Judicial District, for the determination of the question of incompetency raised in the petition. The alleged incompetent is indisputably a resident of Suffolk and not a resident of New York County. The statute (Mental Hygiene Law, § 101, subd. [2]) requires the proceeding to declare incompetency be maintained in the judicial district of the residence of the incompetent. The papers submitted for the order to show cause which instituted the proceeding were sufficiently contradictory on their face on residence of the incompetent to require further inquiry.- Instruments referred to in the moving papers and made part of the record showed repeated references by the incompetent to his residence in Suffolk County.

In such circumstances the statute requires a Supreme Court proceeding be maintained in the Tenth Judicial District (Matter of McKitterick, 286 App. Div. 885, app. dsmd. 309 N. Y. 803; Matter of Schley, 253 App. Div. 818; Matter of Porter, 34 App. Div. 147).

The court at Special Term in the Tenth District has discretion to make such allowances as maybe proper for services performed in good faith under the authority of prior orders. (Cf. Matter of Tracy, 1 Paige Ch. 580; Matter of M’Clean, 6 Johns. Ch. 440; Carter v. Beckwith, 128 N. Y. 312.)

The present committee should continue for a reasonable time, but not later than March 17, 1969 — under the supervision of the Supreme Court, Tenth Judicial District — in the execution of its duties as such committee until a determination of the question of incompetency is made, and the appointment of a new committee or the continuation of the present committee is effected, by the court having jurisdiction as determined herein.

The order should be reversed and .the proceeding remitted to the Supreme Court, New York County, for proceedings in accordance with this opinion.

Burke, J. (dissenting).

Norman W. Roe, an octogenarian, was declared an incompetent in the proceedings below and a committee was appointed. It is somewhat less than undisputed that he was a resident only of Suffolk County, and not a resident of New York County. The papers submitted in support of the order to show cause stated that Mr. Roe was a resident of the Hotel Pierre in New York County and that, since being disabled in 1965 by a stroke, he had been staying at another residence in East Patchogue. Furthermore, those same papers indicated that Mr. Roe’s substantial intangible wealth was located in New York County and that his hotel apartment in New York was frequently used by his housekeeper who had been entrusted with the details of various of Mr. Roe’s business affairs. In addition, the testimony given by various persons indicated that the New York apartment was not used by Mr. Roe for the very understandable reason that he was physically unable to get to New York after he suffered the stroke.

It is undisputed, as the majority indicates, that the Mental Hygiene Law (§ 101, subd. [2]) provides that a special proceeding to declare incompetency and to appoint a committee for an alleged incompetent in the Supreme Court shall be brought in the judicial district “where the alleged incompetent resides ”. This provision is manifestly a venue provision and is of no jurisdictional consequence since the Supreme Court is a constitutional court of State-wide general jurisdiction which clearly had jurisdiction of the subject matter of this proceeding. Thus, for purposes of venue, it is too well settled to require demonstration that a person, for a given purpose including venue, can have more than one residence. (See, e.g., Bradleti v. Plaisted, 277 App. Div. 620; Schwarts v. Schwarts, 274 App. Div. 1082; Fleck v. Fleck, 47 Misc 2d 454.) Thus, the papers submitted by the petitioner below would be “ contradictory ’ ’ only if the question at issué were one of domicile; there is, however, no inherent contradiction in a statement setting forth the fact that a person has more than one residence. Furthermore, the mere fact that the ‘1 incompetent ’ ’ referred in various instruments to a particular address (East Patchogue) as his residence has little significance in negating the coexistence of another residence elsewhere when it is recognized that the particular instruments referred to happened to be executed at the indicated residence solely as a result of the incompetent’s enforced confinement to that address by reason of an incapacitating stroke. This case turns then on a fundamental procedural question as to the nature of venue and the proper methods of raising objection to the venue designated by a petitioner in a special proceeding.

It is elementary that the provisions of the CPLR apply to special proceedings as well as to actions (CPLR 103, subd. [b]; 105). The Mental Hygiene Law expressly declares a proceeding to declare incompetency to be a “ special proceeding” (§ 101, subd. [1]). It, therefore, follows that the provisions of the CPLR as to the incidents of venue apply to incompetencv proceedings except insofar as the statute authorizing the proceeding expressly provides otherwise (CPLR 103, subd. [b]). Thus, except where otherwise provided by law the procedure in special proceedings shall be the same as in actions, and the provisions of the CPLR applying to actions shall apply to special proceedings. This rule of general application is new and is an attempt to obviate the former difficulty in determining which general provisions of the practice act were applicable to special proceedings * * * Thus, where there is authority to prosecute in the form of a special proceeding, the procedure to be followed is that specified in article 4, unless there are express contrary provisions in the statute which authorizes the prosecution, and where not covered by either, then the same procedure applicable to actions ” (McKinney’s Cons. Laws of N. Y., Book 7B, CPLR, art. 4, practice commentary pp. 645-646 [emphasis added]). Manifestly, the Mental Hygiene Law provides only a designation of the proper venue but does not purport to deal with questions of procedure when venue is allegedly improperly laid. In addition, article 4 of the CPLR, of general application to -special proceedings, does not deal with questions of venue. Accordingly, the .residuum -of detailed venue provisions contained in article 5 of the CPLR governs this special proceeding as it does any other special proceeding whose authorizing statute does not contain provisions expressly covering the problem.

Article 5 of the CPLR lays out detailed provisions relating to venue generally, to venue in particular actions and proceedings and to the procedural methods to be employed in designating and seeking to change venne. Basic to the entire article is the proposition that the place of trial of an action, defined by CPLR 106 to include a special proceeding, shall be in the county designated by the plaintiff, defined to include the petitioner in a special proceeding, unless the place of trial is changed to another county by order upon motion pursuant to. CPLR 511 (CPLR 509, 510). The language of the provision specifying that a change of venue is to be sought by motion is particularly significant in light of the revisers ’ note to the effect that the words ‘ ‘ upon motion ’ ’ were added ‘ ‘ to avoid implication that the court may change the place of venue on its own motion.” (Powers v. Delaware & Hudson R. R. Co., 15 A D 2d 620; N. Y. Legis. Doc., 1961, No. 15 [5th Prelim. Rep. of Sen. Fin. Comm.], p. 78; 2 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 510.02, pp. 5-100, 5-101; McKinney’s Cons. Laws of N. Y., Book 7B, CPLR 509, practice commentary, pp. 41-42.) Thus, a defendant, including a respondent in a special proceeding, wtho contends that the venue designated by the plaintiff, or petitioner, is an improper one must employ the procedure set forth in CPLR 511: a written demand must be served upon the plaintiff specifying the venue which the defendant contends is proper “with the anstver or before the answer is served.” (Italics supplied.) The defendant can thereafter move to change the venue to the county he designates as the proper county within 15 days of the service of the written demand, if the plaintiff fails to consent to such change. (CPLR 511, subds. [a], [b].) The appellant here, the respondent in the special proceeding below, took no such steps to accomplish a change of venue and, in fact, did not serve a timely answer even though he was concededly given proper and timely service of the notice of petition, petition and supporting affidavits. Furthermore, and of great significance, there is the fact that appellant’s attorney appeared and consented to and actively participated in the proceedings had before the sheriff’s jury on the issue of Mr. Roe’s incompetency. The respondent had no objection to venue on the issue of declaring Mr. Roe to be an incompetent and, in fact, offered himself as a candidate for inclusion in the committee to be appointed. Respondent went further and participated in the proceedings as to the appointment of the committee and discovered his objection to venue only when it became apparent that, because of his age and background, he was not going to be appointed a member of the committee. Very simply put, venue is a waivable objection and, if ever there was a case in which the objection was waived, this is the case. When the respondent did belatedly discover the alleged impropriety of the New York County venue, his attorney merely orally announced to that court that venue should be changed to the Tenth Judicial District and the court properly exercised its discretion to reject the claim on the ground that it had been waived. Manifestly, it cannot be said as a matter of law that the court abused its discretion in rejecting appellant’s claim especially in view of the time and effort and expense which had already been expended in making the declaration of incompetency and hearing the parties on the question of the membership of the committee. (Matter of McKitterich, 286 App. Div. 885, app. dsmd. 309 N. Y. 808.) In these circumstances then, it should be obvious that there is no venue question properly before this court and the only remaining issues go to the merits of the appointment of the committee, a matter similarly within the sound discretion of the court below.

In the circumstances presented to the court below, there is clearly no basis for finding an abuse of discretion in the selection and appointment of the members of the committee. The persons appointed have clearly demonstrated their qualifications as bearing upon the personal and financial well-being of the incompetent. Indeed, the incompetent had himself formally designated two of them as his future ” committee pursuant to the provisions of section 101-a of the Mental Hygiene Law. In addition, one of the committee members, Mr. Forsythe, has been named by the incompetent as coexecutor of his will with a New York County bank. Another member of the committee, Mrs. Q-otfredsen, has had a long and close personal relationship with the incompetent and had personally assumed the major burden of the personal care of the incompetent following his stroke, as well as maintaining his books and records far him. The third member of the committee, Mr. Eisenberg, was appointed by the court with the express approval of the guardian ad litem for the incompetent’s half-grandnephew, the incompetent’s other distributee, and his qualifications were amply demonstrated to the court below. Furthermore, the court directed that the three members of the committee were to share only two commissions, thereby further demonstrating the court’s obvious care and concern for the property of the incompetent. On all these facts, which were presented to the court below and as to which all the parties were given extremely liberal opportunities to be heard, there is simply no basis upon which to overturn the result reached by the trial court and affirmed by the Appellate Division. To reverse that determination and order the transfer of the proceeding to the Tenth Judicial District simply imposes unnecessary and wasteful burdens on the parties and the estate of the incompetent.

For the foregoing reasons the order appealed from should be affirmed.

Chief Judge Fuld and Judges Scileppi, Bergan, Breítel and Jasen concur in Per Curiam opinion; Judge Burke dissents and votes to affirm in a separate opinion in which Judge Keating concurs.

Order reversed, without costs, and matter remitted to Supreme Court, New York County, for further proceedings in accordance with the opinion herein.  