
    In the Matter of Dennis Sweeney, an Alleged Incompetent Person, Appellant. Jeremiah Sweeney and Cornelius F. Sweeney, Petitioners, Respondents.
    
      Incompetent — when Ms application to be allowed to contest a proceeding in which a committee was appointed, of whichhe had no notice, should be granted — conditions imposed.
    
    The fact that a person, who has been declared incompetent and of whose person and property a committee has been appointed, was given no notice of the presentation of the petition and no opportunity to traverse the allegations contained therein, while it may not be fatal to the proceedings, should be considered in disposing of a request made by the alleged incompetent for leave to traverse the allegations of the petition and to contest the proceeding.
    When such a request should be granted and what terms should be imposed upon the alleged incompetent as a condition of granting it, considered.
    Appeal by Dennis Sweeney, an alleged incompetent person, from an order of the Supreme Court, made at the Fulton Special Term and entered in the office of the clerk of the county of Montgomery on the 29th day of December, 1902, confirming the report of a commission appointed to inquire as to the competency of the said Dennis Sweeney, and appointing a committee of his person and estate.
    
      C. S. Nisbet, for the appellant.
    
      Florence J. Sullivan and Edgar T. Brackett, for the respondents.
   Per Curiam:

W e think that the exercise of a judicial discretion wisely and in accordance with the practice in the Supreme Court called for the granting of the appellant’s request for a hearing. The appellant had no notice of the presentation of the petition, and no opportunity to traverse the allegations contained therein. While this may not be fatal to the proceedings, the failure to give such notice is to be considered in disposing of appellant’s request. ■ The Court of Appeals in Matter of Blewitt (131 N. Y. 541, opinion by Andrews, J.) said: “ In our opinion a very clear case should be made before the court should proceed in lunacy proceedings in the absence of actual personal and written notice to the party, and that unless such a 'case is made by the petition or affidavits * * * an adjudication in the absence of such notice should be set aside.” The appellant had notice of the hearing before the commission, but he was out of the State at the time and presented a reasonable excuse for his default in not appearing at the trial. Aside from the testimony of two local physicians, the evidence taken before the commission shows appellant for a few days in a drunken condition and violent and dangerous because of the excessive use of intoxicating liqtior. There is no proof that this condition is habitual or that appellant was an incompetent person because of habitual drunkenness. While the evidence before the jury sustains the finding of incompetency, it is not of that conclusive character that it might not be explained, and a different finding might result if appellant were allowed to defend. The matter is of the utmost importance to appellant, involving his personal liberty and the custody of a considerable property. He ought to be allowed every facility to present his case.

We are of the opinion, therefore, that appellant should be permitted to traverse the allegations of the petition, be heard upon the appointment of commissioners and before a newly summoned jury. In case the findings, of the jury approved by the commission shall be that appellant is not an incompetent person and the final order of the court sustains such findings, the petition should be dismissed. Pending such proceedings, the order appointing a committee heretofore made should stand. In any event the costs and disbursements incurred, as fixed by the order appealed from, should be paid by the appellant or out of his estate.

This relief is granted to appellant on condition that, within ten days from date of service of a copy of the order of this court upon appellant’s attorneys appearing on this appeal, the appellant shall serve his answer to the original petition and submit himself in person or by attorney to the jurisdiction of the court wherein the proceedings are pending. Otherwise the order should be affirmed, with costs.

Fo costs of this appeal should be allowed to either petitioners or appellant in case the appellant complies with the condition mentioned.

All concurred.

Proceedings opened and order modified as per opinion. Order, if not agreed upon, to be settled by Chester, J".  