
    The People of the State of New York ex rel. Charles A. McLain, Appellant, against Edwin Seiferth and Lorraine Zah, Respondents. Samuel S. Slavitt, as Special Guardian, Respondent; Henrietta Proctor Donnell, Appellant.
   Relator,-as a friend of Mrs. Henrietta Proctor Donnell and purporting to act on her behalf, instituted this habeas corpus proceeding in Supreme Court, Westchester County, alleging in his petition that she was being restrained in her liberty by respondents Seiferth and Zah. On the return day, in view of the conflicting claims made, the court appointed a special guardian for Mrs. Donnell in order to protect her and to take her testimony. After taking her testimony (a copy of which was submitted to the court) the guardian reported that Mrs. Donnell was not being held under any restraint. On the basis of such testimony, report and the other papers in the record, the court on October 2, 1959- made a final order (entered October 6, 1959) which, in its first decretal paragraph, directed that the writ be dismissed, and which, in its second decretal paragraph, awarded $2-50 to the guardian and directed that such sum be paid forthwith by Mrs. Donnell. The relator appeals from so much of the order as dismissed the writ. Mrs. Donnell appeals from so much of the order as directs her to pay the guardian’s fee of $250. Order modified on the law and the facts, without costs, by striking from its second decretal paragraph the provision directing appellant, Henrietta Proctor Donnell, to pay forthwith the sum of $250 awarded to the special guardian. As so modified, the order, insofar as appealed from, is affirmed, without costs. Findings of fact insofar as they may be inconsistent herewith are reversed and new findings are made as indicated herein. The record shows that Mrs. Donnell was neither incompetent nor an infant. In the absence of such a showing there is no authority in law for the appointment of a special guardian for Mrs. Donnell and for the direction that she pay the guardian’s fee. Nolan, P. J., Beldoek, Ughetta, Christ and Pette, JJ., concur.  