In re Brown

Ingraham, J.

This is a motion for an order vacating and setting aside an order of the presiding justice of the Appellate Division of this department, dated March 24, 1929, confirming the report of the referee herein, directing, among other things, that the committee herein apply at Special Term, Part I, of this court for permission to resign as such committee, for the appointment of a substituted committee of the court’s selection and for an order permitting him to file his account as committee, and directing further that in the event of the committee’s failure to so apply that Edward R. Rayher be appointed special guardian for the purpose of filing a petition for the appointment of a substituted committee. Said special guardian has so moved.

On May 23, 1930, by an order signed by the presiding justice, all proceedings herein pending before Special Term, Part I, of this court are stayed pending the determination by this court of the question of jurisdiction. This court acquires its jurisdiction over the person and property of an incompetent as the successor of the Court of Chancery. Prior to the adoption of the Constitution of 1894 the duty of examining accounts of committees of incompetent persons was, in the case of committees appointed by the Supreme Court in New York county, performed by the judge presiding at the General Term of the Court of Common Pleas. Since' the adoption of the Constitution of 1894 the jurisdiction formerly exercised by the General Term was vested in the presiding justice of the Appellate Division of the First Department. (Matter of Arnold, 76 App. Div. 126; Matter of Andrews, 192 N. Y. 514.) There have been enacted from time to time statutes which have become embodied in section 1379 and related sections of the Civil Practice Act. These enactments confer no additional jurisdiction, their sole purpose being to regulate the procedure to be followed in the exercise of existing jurisdiction. Section 1379 provides that the presiding justice of the Appellate Division of the First Department shall annually examine or cause to be examined the accounts of committees of incompetents. Section 1380 provides for the removal of committees. Such removal may not take place without an opportunity being given the committee to account in connection with the application for his removal, except where the committee is charged with misappropriation of funds or corruption or dishonest conduct.

Here the order objected to directed the committee to file his account and apply for permission to resign, or in the event of his failure so to do appoints a special guardian to make the application for removal pursuant to the provisions of section 1380 of the Civil Practice Act. There can be no doubt that the jurisdiction to make the order to which this motion is directed is vested solely in the presiding justice of the Appellate Division of the First Judicial Department, and that this court has no jurisdiction to review or vacate the order.