
    In the Matter of the Appointment of a Committee of the Person and Estate of Edward Maginn, an Alleged Incompetent Person, and an Inmate of the Utica State Hospital, Appellant. Harold L. Palmer, as Superintendent of the Utica State Hospital, and William A. Matteson, Respondents.
    
      Appointment of a committee of an incompetent—a motion therefor not noticed for the first day of the term—order to show cause granted returnable the next day — recital therein, through inadvertence, that the application was dismissed — service of notice of the first application on the incompetent — service of the order to show cause on his attorney.
    
    An application for the appointment of a committee of the person.and estate of an alleged incompetent, made under section 2323a of the Code of Civil Procedure, was based upon a petition which was served upon the alleged incompetent and the superintendent of a hospital in which he was confined. When the application was brought on for a hearing, March 28, 1904, the court sustained an objection interposed by the alleged incompetent’s attorney upon the ground that the proceeding was not noticed for the first day of the term, but issued on the same day ah order to show cause why the application should not be heard upon the following day upon the same papers. The order to show cause, which required that service thereof should be made upon the alleged incompetent or his attorney, was served on the attorney, but not upon the alleged incompetent. The application was duly made on the next day, and the court held that it would appoint the committee.
    Two orders, one dated March twenty-eighth and the other dated March twenty- ■ ninth, were then prepared and were both entered April 1, 1904. The order of March twenty-eighth contained the provision that the application be dismissed and that the petitioner might at once apply for an order to show cause upon the same papers. The order of March twenty-ninth appointed the committee and recited the proceedings theretofore taken, but did not contain the recitation that the application made March twenty-eighth was dismissed.
    
      JSeld, that the recital in the order of March twenty-eighth that the application had been dismissed was inserted by inadvertence, and that all the transactions constituted but a single proceeding taken pursuant to the original notice;
    That the service of the original notice upon the incompetent satisfied the requirements of the Code of Civil Procedure, and that it was unnecessary to serve the order to show cause-upon him.
    
      ¿Semble,.that the court might well have overruled the objection taken to the hearing of the application on March 28, 1904, and have appointed a committee on that day. '
    Appeal by Edward Maginn, an alleged incompetent person, from ¡an order of the Supreme Court, made at the Oneida Special Term •and entered in the office of the clerk of the county of Oneida on the 1st day of April, 1904, appointing a committee of his person .and estate.
    Also a motion by Harold L. Palmer, as Superintendent of the Utica State Hospital, and William A. Matteson to dismiss such appeal from the said order, which motion was heard with the argument of the appeal.
    
      Irving K. Baxter, for the appellant.
    
      Henry J. Cookinham and William A. Matteson, for the respondents.
   Williams, J.:

The motion to dismiss the appeal should be denied and the order affirmed, with costs.

There seems to be no doubt as to the in competency of Maginn and his inability to care for his person and property. He was under •arrest for a criminal offense in January, 1901, and an investigation as to his mental condition was had before the county judge of Oneida-county, resulting in his commitment to the State hospital in Utica, January 3, 1901. He has remained there ever since. No effort, was made to prove his competency or to procure his discharge until-more than three years after his commitment, when this proceeding was instituted. About that time a habeas corpus proceeding was-instituted, and an extended hearing was had before ex-Justice Milton H. Merwin and two other men as referees. They finally made a report that he was incompetent and not a proper person to be at large. The writ was thereupon dismissed, and Maginn still remains-in the State hospital.

The habeas corpus proceeding was commenced early in April,-1904, and the report of the referees was made September 28, 19Q4. ■ A proceeding for the appointment of a committee was first suggested by Mr. Baxter, the attorney for the appellant herein, early in. March,. 1904. He then endeavored to have the board of charities of the city of Utica make such application under section 2324 of the-Code of Civil Procedure, and requested the commissioners to employ him as attorney to do the business. This board declined to act in the premises, and thereafter this application was made under section 2323a of the Code of Civil Procedure. The petition was verified March 19,1904, and was served, with notice of hearing, upon Maginn. and the superintendent of the hospital. The application pursuant: to the notice came' on for a hearing at a Special Term of the? Supreme Court in Oneida county on the 28th day-of March, 1904. ■

Mr. .Baxter, who had earlier in the month endeavored to have- ' another application made for the appointment of a committee,, appeared in this proceeding and opposed the. application, being authorized by Maginn so far as he could give such authority.

One of. the objections, that the proceeding was not noticed for the first day of the term, was regarded by the court as a good one, no reason appearing why the notice was not for the first day of the= term. The court thereupon held that this objection should be sustained, but an order to show cause why the application should not. be heard the following day upon the same papers would at once be made. No order was then drawn up or entered. The order to show cause was made the same day, and required service ■ thereof upon Maginn or his attorney Baxter.

Service was made that day upon Baxter, but not on Maginn, and on the 29th of March, 1904, the application was made, and the court held that it would appoint the committee. Thereafter the two orders of March twenty-eighth and twenty-ninth were prepared and signed, and both were entered the same day, April 1, 1904. The order of March twenty-eighth contained the provision that the application be dismissed, and petitioner might apply at once for, an order to show cause, etc., upon the same papers. The order to show cause was why an order should not be made appointing a committee, as prayed for in the petition theretofore served.

The order of March twenty-ninth recited the proceedings had in the matter, and among other things that the court held that the objection to hearing the motion of March twenty-eighth was well taken, and granted the petitioner leave to apply for an order to show cause why the application should not be heard on the twenty-ninth, on the same and any new papers. There was no recitation that the application made March twenty-eighth was dismissed, but the whole was treated as a single proceeding, upon the same petition, the order to show cause being rendered necessary merely by reason of the objection made by Baxter, already referred to. The clause in the first order dismissing the application was apparently inserted through inadvertence. Reading the two orders together, they having been entered at the'same time, we think the whole should be considered as one and the same proceeding.

The point raised upon this appeal is that no personal service upon Maginn of the notice of the application made on the twenty-ninth of March was made, and inasmuch as section 2323a of the Code of Civil Procedure requires such personal service, the court acquired no jurisdiction of the proceeding. Maginn had notice of the commencement of the proceeding by personal service of the petition and original notice, and all that was thereafter done was in that one proceeding pursuant to that notice.

There was no real merit in the objection to a hearing on the twenty-eighth, and the court might well have overruled it and made the order appointing a committee on that day. It saw fit, however, to continue the proceeding to the next day and made and provided for service of the order to show cause, and then the application was properly heard and disposed of.

There seems to be no objection to the persons appointed as committee, and the need of a committee is undoubted. The objection here raised is technical and without real merit, and the order should mot be reversed:

It is claimed that we should dismiss the appeal upon the facts appearing upon the motion. The order provided that the committee should pay the hospital the amount due it for the care of Maginn, and the committee complied with that provision. It also provided that Baxter should have free access to Maginn during the continuance of the habeas corpus proceedings, and that provision was complied with. It also provided that the committee should supply Baxter with money for expenses in the habeas corpus proceedings, and should pay him twenty dollars costs' of the proceeding in which the order was made. These provisions were cúmpliedw-ith, and Baxter was paid for the expenses referred to one hundred •dollars, and costs, twenty dollars. '

It is said we should hold 'that by accepting the moneys provided to be paid Baxter for the benefit of Maginn, the appeal and' the right to' appeal from the order had been waived.

We conclude, however, to deny the motion to dismiss the appeal, and affirm the order appealed from, which is accordingly done.

All concurred. '

Order affirmed, with costs.'  