Opinion
February 9, 1953.
Present — Carswell, Acting P.J., Adel, Wenzel, MacCrate and Beldock, JJ. [See post, p. 897.]
Appeal by the incompetent and his two brothers from an order confirming the findings of a jury that M. Edward Herman is incompetent, and appointing his wife as the committee of his person and property. Order unanimously affirmed, with costs. The order appointing a temporary guardian of the person and temporary receiver of the property of the then alleged incompetent is not specified in the notice of appeal and, therefore, may not be reviewed. ( Matter of Flanagan, 271 App. Div. 1014.) Besides, that appointment was ratified and confirmed by the order of October 26, 1950, entered on the consent of the attorney for the then alleged incompetent. This proceeding was instituted by petition, dated August 23, 1950. The hearing on the issue of competency took place on February 5, 1951. The decree appealed from was entered April 5, 1951. This appeal was not argued until January 16, 1953. It is conceivable that the incompetent's condition may have changed in the two-year period since the finding of incompetency by the trial jury in February, 1951. Appellants are not without remedy. A proceeding could have been instituted during this protracted period, if warranted. A proceeding may be instituted presently to discharge the committee, supported by evidence as to competency. (Civ. Prac. Act, § 1382.) The alleged impropriety of the appointment of Mrs. Herman as committee, based upon facts and incidents occurring subsequent to the date of the order from which the appeal is taken, may not be considered. Here again, appellants are not without remedy. A proceeding may be instituted upon sufficient grounds to remove the committee and to substitute an impartial person to act in her place. (Civ. Prac. Act, § 1380.)