
    In the Matter of Olive M. Battey, an Incompetent Person.  John C. Briddon, Appellant; John J. Chilson, as Committee and as Trustee, Respondent.
    Fourth Department,
    September 25, 1940.
    
      James V. Jones [Hugh J. O’Brien and George H. Harris of counsel], for the appellant.
    
      George F. Hixson, for the respondent John J. Chilson.
    
      George B. Draper, special guardian ad litem.
    
    
      Block & Smith [Wilton A. Block of counsel], for the American Surety Company.
    
      John J. Bennett, Jr., Attorney-General.
    
   Per Curiam.

This proceeding was commenced by John C. Briddon, a brother of the incompetent. Upon his petition an order was made requiring the committee to file an account. The court had power to direct that notice of the accounting be given to a relative of the incompetent. (Civ. Prac. Act, § 1381, subd. 3; § 1360.)

The court having recognized Briddon as a party to the proceeding, should have considered the objections filed by him to the accounts. Objections having been filed, the accounting party was bound to come into court and prove his accounts. (Vernon Metal & Produce Co., Inc., v. Joseph & Brothers Co., 241 N. Y. 544.)

It appearing in this case that the accounting party has handled the funds of an incompetent whose sole heir is an infant, the interests of justice require that he should support Ms accounts by testimony before the court or a referee.

The accounts of Chilson as trustee should not be judicially settled on motion but they should be settled in an equitable action. (Matter of Syracuse Trust Co. [Kernan], 158 Misc. 713; affd., 247 App. Div. 857; Matter of Bruns, 156 Misc. 873.)

The order appealed from should be reversed on the law and the motion to vacate the two orders of December 19, 1938, should be granted, without costs, and the proceeding should be referred to Hon. Arthur E. Sutherland, official referee, to judicially settle the accounts of John J. CMlson, as committee of the property of Olive M. Battey, an incompetent.

All concur. Present — Crosby, P. J., Cunningham, Taylor, Dowling and Harris, JJ.

Order reversed on the law, without costs, and motion granted, without costs, and proceeding referred to Hon. Arthur E. Sutherland, official referee, to judicially settle the accounts of John J. CMlson, as committee of the property of Olive M. Battey, an incompetent.  