
    First Department,
    June, 1954.
    (June 1, 1954.)
    In the Matter of the Ancillary Appointment of a Foreign Committee of the Estate of Genevieve R. Cline, an Incompetent Person. Mary A. Stringham, Appellant; Marion P. Thompson, Respondent.
   Per Curiam,.

We are constrained to agree with the report of the learned Referee, confirmed by Special Term, finding that incompetent is a resident of the State of New York. The present issue has arisen on the question of whether the incompetent resides without the State so that the committee appointed in Ohio might be named ancillary committee of the property of the incompetent within this State pursuant to section 1363 of the Civil Practice Act. Failing a showing of such residence without the State, the foreign committee may not claim appointment as an ancillary committee (Matter of McHie, 233 App. Div. 388, affd. 258 N. Y. 589).

Petitioner may still successfully apply here for the appointment of herself as committee of the incompetent under section 1359 of the Civil Practice Act (Matter of De Teplow, 88 N. Y. S. 2d 215).

The order appealed from should be affirmed, with costs.

Peck, P. J., Dore, Callahan, Breitel and Bergan, JJ., concur.

Order unanimously affirmed, with $20 costs and disbursements to the respondent.  