In re the Final Accounting of Makel

Appellate Division of the Supreme Court of New York

In re the Final Accounting of Makel

31 A.D.2d 797, 297 N.Y.S.2d 474, 1969 N.Y. App. Div. LEXIS 4592

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

DecidedFebruary 18, 1969

StatusPublished

This text of 31 A.D.2d 797 (In re the Final Accounting of Makel) 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 the Final Accounting of Makel, 31 A.D.2d 797, 297 N.Y.S.2d 474, 1969 N.Y. App. Div. LEXIS 4592 (N.Y. Ct. App. 1969).

Pincite

Opinion

Order entered April 10, 1968, confirming report of .Special Referee, denying objectant’s cross motion to disaffirm the same, and judicially settling and allowing committee’s final account, is unanimously reversed .on the law and in the exercise of discretion, without costs and without disbursements and the proceeding remanded to Special Term with the .direction that a hearing be held, wwno pro tune as of July 1, 1954, to determine the propriety of the order entered .on that date whereby the committee was authorized to make payments out of the estate of her incompetent husband for her support. The Referee’s report, deals only with the propriety of the [798]*798application made in 1954, and that was eminently proper. The order made on the application was, however, invalid for the court at that time neither appointed a guardian ad litem nor made any inquiry despite the patent adversity of the committee-wife to the interests of her incompetent husband, and in the face of the clear mandate of section 208 of the Civil Practice Act. Whether the wife was legally entitled to support payments out of the estate and, if so entitled, the proper amount to be paid, can only be determined after examination into .the facts and circumstances which existed at the time the invalid order was obtained. A hearing must be had for that purpose. Since the object ant has been declared competent, no guardian ad litem need be appointed to protect his interests. Concur—■ Stevens, P. J., Capozzoli, McGivern, Markewieh and Maeken, JJ.

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Order entered April 10, 1968, confirming report of .Special Referee, denying objectant’s cross motion to disaffirm the same, and judicially settling and allowing committee’s final account, is unanimously reversed .on the law and in the exercise of discretion, without costs and without disbursements and the proceeding remanded to Special Term with the .direction that a hearing be held, wwno pro tune as of July 1, 1954, to determine the propriety of the order entered .on that date whereby the committee was authorized to make payments out of the estate of her incompetent husband for her support. The Referee’s report, deals only with the propriety of the [798]*798application made in 1954, and that was eminently proper. The order made on the application was, however, invalid for the court at that time neither appointed a guardian ad litem nor made any inquiry despite the patent adversity of the committee-wife to the interests of her incompetent husband, and in the face of the clear mandate of section 208 of the Civil Practice Act. Whether the wife was legally entitled to support payments out of the estate and, if so entitled, the proper amount to be paid, can only be determined after examination into .the facts and circumstances which existed at the time the invalid order was obtained. A hearing must be had for that purpose. Since the object ant has been declared competent, no guardian ad litem need be appointed to protect his interests. Concur—■ Stevens, P. J., Capozzoli, McGivern, Markewieh and Maeken, JJ.

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Bluebook (online)

31 A.D.2d 797, 297 N.Y.S.2d 474, 1969 N.Y. App. Div. LEXIS 4592, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-final-accounting-of-makel-nyappdiv-1969.