In re Aho

Appellate Division of the Supreme Court of New York

In re Aho

46 A.D.2d 673, 360 N.Y.S.2d 47, 1974 N.Y. App. Div. LEXIS 3908

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 21, 1974

StatusPublished

Cited by1 cases

This text of 46 A.D.2d 673 (In re Aho) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Aho, 46 A.D.2d 673, 360 N.Y.S.2d 47, 1974 N.Y. App. Div. LEXIS 3908 (N.Y. Ct. App. 1974).

Pincite

Opinion

In a proceeding for the appointment of a committee of the person and property of an alleged incompetent, the latter purports to appeal from (a) an order of the Supreme Court, Westchester County, entered August 3, 1973, which denied her motion for a change of venue to the County of Schenectady, and (b) so much of a judgment of the same court, entered September 18, 1973, after a jury trial, as (1) appointed Stewart W. Rowe, Esq., committee of the person of the alleged incompetent and the County Trust Company the committee of the property of the said incompetent and (2) set forth certain implementing provisions. Appeals dismissed, without costs. After final judgment no separate appeal from the intermediate order denying a change of venue survived (Dayon v. Downe Communications, 42 A D 2d 889; Matter of New York Life Ins. Co. v. Galvin, 41 A D 2d 83, 86; Sawdon v. Sawdon, 39 A D 2d 883). The purported attorneys for appellant have demonstrated no authority to bring these appeals, as their alleged client is now an adjudicated incompetent and the finding of [674]*674incompetence is not contested (see Matter of Berman, 24 A D 2d 432; Matter of Deimer, 274 App, Div. 557, 559; Matter of Thoms, 286 App. Div. 1146; Matter of Stenton, 53 Mise. 515; CPLR 1201; cf. Matter of Gaidin, 272 App. Div. 774; Matter of Lamer, 68 App Div. 320). In any event, the appeal from the judgment did not bring up for review the denial of the motion for a change of venue (Matter of Seltzer v. Wendell, 11 A D 2d 805). In this case, unlike the situation in Matter of Boe (24 N T 2d 52, 55), in which the proceeding had “indisputably” been brought in the wrong county, the facts adduced indicated that venue was properly laid in Westchester County, as the incompetent had lacked the mental capacity to formulate the intention to change her domicile (see Matter of McKitterick, 286 App. Div. 885; Matter of Porter, 34 App. Div. 147; Matter of Thomas, 26 A D 2d 514). Therefore, the order did not “necessarily affect” the final judgment (CPLR 5501, subd. [a], par. 1). Latham, Acting P. J., Shapiro, Cohalan and Benjamin, JJ., concur; Brennan, J., not voting.

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In a proceeding for the appointment of a committee of the person and property of an alleged incompetent, the latter purports to appeal from (a) an order of the Supreme Court, Westchester County, entered August 3, 1973, which denied her motion for a change of venue to the County of Schenectady, and (b) so much of a judgment of the same court, entered September 18, 1973, after a jury trial, as (1) appointed Stewart W. Rowe, Esq., committee of the person of the alleged incompetent and the County Trust Company the committee of the property of the said incompetent and (2) set forth certain implementing provisions. Appeals dismissed, without costs. After final judgment no separate appeal from the intermediate order denying a change of venue survived (Dayon v. Downe Communications, 42 A D 2d 889; Matter of New York Life Ins. Co. v. Galvin, 41 A D 2d 83, 86; Sawdon v. Sawdon, 39 A D 2d 883). The purported attorneys for appellant have demonstrated no authority to bring these appeals, as their alleged client is now an adjudicated incompetent and the finding of [674]*674incompetence is not contested (see Matter of Berman, 24 A D 2d 432; Matter of Deimer, 274 App, Div. 557, 559; Matter of Thoms, 286 App. Div. 1146; Matter of Stenton, 53 Mise. 515; CPLR 1201; cf. Matter of Gaidin, 272 App. Div. 774; Matter of Lamer, 68 App Div. 320). In any event, the appeal from the judgment did not bring up for review the denial of the motion for a change of venue (Matter of Seltzer v. Wendell, 11 A D 2d 805). In this case, unlike the situation in Matter of Boe (24 N T 2d 52, 55), in which the proceeding had “indisputably” been brought in the wrong county, the facts adduced indicated that venue was properly laid in Westchester County, as the incompetent had lacked the mental capacity to formulate the intention to change her domicile (see Matter of McKitterick, 286 App. Div. 885; Matter of Porter, 34 App. Div. 147; Matter of Thomas, 26 A D 2d 514). Therefore, the order did not “necessarily affect” the final judgment (CPLR 5501, subd. [a], par. 1). Latham, Acting P. J., Shapiro, Cohalan and Benjamin, JJ., concur; Brennan, J., not voting.

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Bluebook (online)

46 A.D.2d 673, 360 N.Y.S.2d 47, 1974 N.Y. App. Div. LEXIS 3908, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-aho-nyappdiv-1974.

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