Opinion
December 15, 1958
Appeal, as limited by appellant's brief, from so much of an order as fixed the compensation to be paid out of the incompetent's estate to the appellant's former attorney, the attorney for the incompetent, and the special guardian for the incompetent, for services rendered in the proceeding for the appointment of a committee of the incompetent. Appeal dismissed, without costs. The order appealed from, having been made ex parte, is not appealable (Civ. Prac. Act, §§ 609, 634; Matter of Collord, 273 App. Div. 1030). In dismissing the appeal, however, we deem it advisable to state that in our opinion notice of the application for the allowances to be paid to respondents out of the incompetent's estate should have been given to appellant as well as to all other interested parties (cf. Matter of Herman, 281 App. Div. 701; Matter of Herman, 281 App. Div. 702). Appellant, if so advised, may move at Special Term on notice to vacate the order and, if that motion is denied, may appeal to this court from the order of denial. (Cf. Stewart v. Stewart, 127 App. Div. 672; People ex rel. Bishop v. Bishop, 184 App. Div. 227. ) A prior motion to dismiss this appeal was denied because we were unable to determine the essential facts from the papers submitted. Nolan, P.J., Wenzel, Murphy, Ughetta and Hallinan, JJ., concur.