
    In the Matter of the Application of Homer C. Babcock, as Committee of the Person and Estate of Rose or Rosalia Rydewicz, an Incompetent Person, to Sell the Interest of the Said Incompetent Person in Certain Real Property Located in the County of Kings. American Surety Company of New York, Appellant; National Surety Company, Respondent.
   Order appealed from reversed on the law and the facts, with ten dollars costs and disbursements, and appellant’s motion for a modification of the resettled order, dated July 31, 1926, and entered August 9, 1926, granted, with ten dollars costs. It is our opinion that the Special Term was without power, by an ex parte order, to release the National Surety Company from its obligation on its bond in the special proceeding for the sale of the real estate of the incompetent, on the confirmation of the report of Babcock as committee of the incompetent, inasmuch as it did not appear that said committee had paid over, invested or accounted for the proceeds of the sale of said real estate, and that the respondent surety company cannot be discharged or released from liability on its said bond until the committee’s account of said proceeds is made and settled. Kapper, Scudder, Tompkins and Davis, JJ., concur; Lazansky, P. J., dissents on the ground that the order is not appealable as it denies a motion for a resettlement as to a matter of substance. (Bergin v. Anderson, 216 App. Div. 844.)  