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People of the State of New York v. George C. Clausen.

The issues raised by an alternative writ are similar to issues of fact which arise in an equity action and which are sent by that court to a jury for trial.

The practice to be followed in an equity action has been long settled and understood and is well expressed in Birdsall v. Patterson (51 N. Y. 43). Therein it was said: "This was an equitable action and issues had been framed and ordered to be tried before a jury at the circuit. These issues were upon trial at the time this motion was made. The action was not upon trial and the whole case was not then before the court. These issues, like feigned issues under the old chancery practice, were ordered to be tried so that the court could have the findings of the jury upon the final hearing of the whole case for the information of its conscience. The order of the court framing the issues and ordering them to be tried is not satisfied by the finding or decision of the judge holding the circuit. The jury must find upon the issues, and their finding must be presented to the court upon the final hearing. If they find upon insufficient evidence, the party aggrieved has his remedy by a motion for a new trial according to the practice prescribed in Supreme Court Rule No. 33. The judge presiding at the trial of the issues has no right to a non-suit."

The disposition to be made of issues raised by an alternative writ of mandamus which are in the nature of issues settled in a court of equity and sent to a jury is thus stated and the proper practice correctly outlined in the appellant's brief: "Where material allegations in a petition for the peremptory writ are denied by the respondent, and the Special Term directs the issuance of an alternative writ so that the issues of fact may be tried by a jury, the verdict of a jury upon the trial of the issues of fact raised by the alternative writ is for the benefit and guidance of the Special Term in determining whether or not to issue a peremptory writ of mandamus. An alternative writ of mandamus corresponds exactly with an order of the court framing and

People of the State of New York v. George C. Clausen.

settling issues of fact in an equity case to be sent to a jury. In both instances the court, through the jury's verdict, seeks enlightenment as to the facts in order that the correct principle of law may be applied upon the application for the final order or upon the application for the peremptory writ of mandamus as the case may be."

Even though there had been, therefore, a failure of proof on the part of the relator, the learned trial judge could not in such a case any more than upon the trial of any other action where there was mere failure of proof dismiss "upon the merits" because, under such circumstances, the merits are not involved. If the insertion of these words were the only error, we might correct it by striking out the provision "upon the merits," but this would not reach the principal error which we think was committed which consisted in the practice followed upon the trial. It would have been proper for the learned trial judge in the absence of proof to have directed a verdict upon the issues, or, upon conflicting evidence, to have submitted the issues for the determination of the jury; but what the Code practice prescribes is that the disposition of the entire proceeding shall not be made at the Trial Term, the provision of the Code being that "the verdict * must be returned to and the final order thereupon must be made by the Special Term." Whether or not issues of fact under an alternative writ of mandamus shall or shall not be sent for a jury trial is not discretionary with the Special Term, but where such issues are presented, the relator is entitled as matter of right to have a jury trial thereon, and the judge at Special Term is bound to send them to a jury (secs. 2083 and 968, Code of Civil Procedure).

Without discussing the merits, therefore, or passing any opinion thereon, we think, for the reason that the practice followed was wrong, that the judgment appealed from must be reversed and the issues again sent to the Trial Term to be disposed of by a jury. Accordingly so ordered, with costs to appellant to abide the event.

In the Matter of Nina M. Nutting, Committee of Thos. B. Nutting.

VAN BRUNT, P.J., and MCLAUGHLIN, J., concur.

HATCH and INGRAHAM, JJ., concur, and also think that a question of fact was presented, and that it would have been error to direct a verdict.

IN THE MATTER OF THE SECOND INTERMEDIATE JUDICIAL ACCOUNTING OF NINA M. NUTTING, COMMITTEE OF THE PROPERTY AND ESTATE OF THOMAS B. NUTTING, AN INCOMPETENT.

SUPREME COURT-APPELLATE DIVISION-FIRST DEPARTMENT-JULY, 1902. § 2729.

Appeal-Questions Considered-Accounting by Committee-Burden of Proof-Expenditures-Production of Vouchers-Claims Allowable-Correction of Account-Authority of Appellate Division.

Where the first account of the committee of a lunatic is confirmed by the court with the acquiescence of all the interested parties, and is not attacked on the contest of a second account, it will not be considered on an appeal from the settlement of the latter account.

The first duty of the committee of a lunatic is to provide for the comfort and care of the lunatic so far as is compatible with his estate, but, if he receives such care, it is immaterial that he is kept in a hospital where no charge is made for his care, or where his services are sufficient to pay therefor.

The committee of a lunatic who keeps the lunatic in a hospital which only receives his services as compensation has the burden, on accounting, to show that the lunatic receives the care to which the condtion of his estate entitles him.

Code Civ. Pro., section 2729, authorizing the allowance, without vouchers, of expenditures by administrators of items not exceed

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In the Matter of Nina M. Nutting, Committee of Thos. B. Nutting.

ing $20, the total not to exceed $500, applies to the committee of a lunatic.

The committee of a lunatic is not entitled, on accounting, to the allowance of sums paid to herself, the purpose thereof not being shown, or for money used to pay a bill for the estate of a third person, or for money expended for charity.

The Appellate Division of the Supreme Court has no authority, on an appeal from an order confirming the account of the committee of a lunatic, to correct the account. (S. c. 77 N. Y. Supp., 696.) (Decided July, 1902.)

Appeal by the special guardian of the incompetent from ar order as resettled by order of the court, confirming the report of a referee, settling, determining and allowing the second intermediate account of Nina M. Nutting, as committee of an incompetent person.

On February 19, 1895, the respondent, Nina M. Nutting, was appointed by the Supreme Court a committee of the property and estate of Thomas B. Nutting, Jr., her husband, an incompetent person. The petitioner and her husband were residents of New Jersey, and the incompetent was engaged in business in the City of New York as an insurance broker.

The petitioner had previously been appointed guardian of the person of her husband in the State of New Jersey. The only property possessed by the incompetent in the State of New York or elsewhere, except the amount in the hands of his committee, is certain articles of office furniture, used by him in conducting the insurance brokerage business in the City of New York, and valued at $250. His only source of income is his share in the profits of the insurance business.

The order appointing the respondent as committee provided that she be authorized to continue the said insurance business, and apply the profits and income of said business, so far as the same shall be necessary, to the payment of the debts of the said Thomas B. Nutting, Jr., if any, and for his maintenance and that of the said Nina M. Nutting, and

In the Matter of Nina M. Nutting, Committee of Thos. B. Nutting.

for the maintenance and education of their three minor children.

The insurance business is now conducted by one Eckert, under an agreement made between him and said committee, whereby she is to receive one-half of the gross receipts of the commissions and profits thereof, in behalf of the incompetent. In December, 1900, the petitioner filed her second intermediate judicial account, and on the 10th day of January, 1901, applied to the Supreme Court, New York County, for the settlement thereof, and on that day an order was duly entered sending said accounts to a referee, to examine, hear and determine the questions arising upon the settlement thereof, and George H. Hart, the appellant herein, was appointed special guardian of the said incompetent.

The income derived from the incompetent's business between February 1, 1898, and October 9, 1900, and paid over to said committee, amounted to $9,089.65, including the sum of $236.13 received for rent.

The committee secured the commitment of the incompetent to the State Hospital at Morris Plains, in the State of New Jersey, as a charity patient; the hospital being maintained by the State as a charitable institution for the insane. Nothing is paid by the committee for his care and maintenance, and he performs certain duties in looking after other patients.

The committee, in her account, alleges that she has expended $8,260.41, which was for the maintenance of herself and children for the period between January 31, 1898, and October 9, 1900. This should leave in her hands as a balance $829.24, but this balance is merely nominal, for out of it she has procured an order authorizing her to retain for herself $252.24 for commissions, and to pay her attorneys $150, to the special guardian $100, and to the referee $125, amounting to the sum of $627.24, leaving the actual balance $202. She shows that she has consumed this money for the benefit of herself and children, but in accounting there

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