In the Matter of the Application for the Appointment of a Committee of the Estate of Margaret Palmer, an Alleged Incompetent Person. Ervin Palmer, Appellant; Edith Weintraub and Pearl H. Weinberger, Respondents

In the Matter of the Application for the Appointment of a Committee of the Estate of Margaret Palmer, an Alleged Incompetent Person. Ervin Palmer, Appellant; Edith Weintraub and Pearl H. Weinberger, Respondents. [MAJORITY — Per Curiam.] Per Curiam. We are of opinion that the special guardian should not have received an allowance of more than $350 and that, in the exercise of a sound discretion, Special Term should have denied any allowance for the services rendered by the attorney for the respondent Edith Weintraub. We are further of opinion that the question of adversity of interest of the appellant Ervin Palmer and the propriety of the appointment in the circumstances of a disinterested third party should be referred to an official referee to take proof and report to the court with his opinion. The evidence offered against the appellant, tending to show bad character, if at all relevant, was wholly insufficient to justify a finding that the charges made were true. Upon the coming in of the report to the justice then and there presiding at Special Term, if adversity of interest as above set forth is found, the disinterested third party already appointed should be reappointed. It follows, therefore, that the order entered October 17, 1941, adjudging Margaret Palmer to be an incompetent person, and the order dated July 31, 1941, denying the motion of Ervin Palmer for an order of reference, should be modified as indicated herein, and as so modified affirmed, without costs. The appeal from the order entered October 17, 1941, denying the motion of Ervin Palmer to vacate the decision made by the court on September 27, 1941, should be dismissed. Present — Martin, P. J., O’Malley, Townley, Cohn and Callahan, JJ.; Cohn, J., taking no part. Order entered October 17, 1941, adjudging Margaret Palmer to be an incompetent person, and order dated July 31, 1941, denying motion of Ervin Palmer for an order of reference unanimously modified as indicated in opinion, and as so modified affirmed, without costs. Appeal from order entered October 17, 1941, denying motion to vacate decision made by the court September 27, 1941, dismissed. Settle order on notice.