Alfred E. Sander, Appellant, v. Alma Louise Larner, Respondent; William Morris Butler, Appellant, v. Alma Louise Larner, Respondent

Alfred E. Sander, Appellant, v. Alma Louise Larner, Respondent. William Morris Butler, Appellant, v. Alma Louise Larner, Respondent. •Commission to inquire as to mental capacity—what orders directing the payment of the commissioners’ fees, where the alleged incompetent is found to he capable of managing her affairs, are. not enforcihle out of her estate. 'The proceedings, had before a commission to inquire into the mental capacity of Alma Louise Larner, an alleged incompetent, resulted in a finding that she. was capable of managing her own affairs. This finding was confirmed by an order which fixed the fees of the commissioners at §350 each, and ordered a trust company, which had previously been appointed trustee of the estate of the said Alma .Louise Larner, to pay the same out of her estate. This order was resettled by .another order which directed the trust company to pay “ for and on behalf of the said Alma Louise Larner ” to the commissioners the amount theretofore, .'fixed as their fees. The trust company, which was not a party to the proceeding before the commissioners, ^entirely disregarded- the orders and no appeal was ever taken therefrom, either by the trust company or by the said Alma Louise Larner. Meld, that the commissioners could not maintain an action against Alma Louise Larner to recover the amount of their fees as fixed by the orders; 'That, as such orders did not direct her to do anything and the court did not have jurisdiction of the trust company, the orders did not constitute an adjudication that she owed the commissioners anything or render it necessary for her to appeal therefrom. Semble, that sections 2833, 2334 and 2336 of the Code of Civil Procedure do not authorize the awarding of costs against the defendant in such a proceeding where it results in an adjudication that she is competent to manage her own affairs. Appeal in each of the above-entitled actions by the respective ■plaintiffs, Alfred E. Sander,',.and William Morris Butler, from a judgment of the Municipal Court of the city of New York, bor-ough of Brooklyn, in each action in favor of the defendant, entered •on the 13th day of September, 1904, dismissing the complaint in teach action. Alfred E. Sander, for the appellants. Harry D. Nims, for the respondent. [MAJORITY — Woodward, J.:] Woodward, J.: . The two actions in which appeals have heen taken are identical, except that the plaintiffs 'are different persons.., Thfey were tried together; they are likewise joined in this appeal, so that but one discussion is necessary for both actions. Oh the 14th day of December, 1903, Louise A. Coddington, 'daughter of the defendant, petitioned the Supreme Court for a commission to inquire into the mental capacity'of the defendant in > these actions, it being alleged that the latter was an habitual drunkard and incapable, of managing her estate. A commission'was issued to Alfred E. Sander, counselor at law; William M. Butler, physician, and another, to inquire, .by a jury,, into the matters set forth in the petition. The juryfoimd the defendant to be com- . petent to care for herself and her property, and on thé 4th day of March, 1904, the Supreme Court in the county of. Kings issued a final order confirming the findings of the jury and fixing the fees of Alfred E. Sander and William M. Butler, commissioners, at $350 each, and ordered the Farmers’ Loan and Trust Company, which had previously been made the trustee of defendant’s ■ estate, to pay the sainé out of the body of the estate of Alma Louise Larner. The trust company was .not a. party to the- prodeeding in any way, and refused to make the payment. On. the 20th day of March, 1904, á further order was made, resettling the order of March 4, 1904, and providing that „the Farmers’ Loan and Trust Company should pay,'and it was commanded to pay, “for arid on behalf of said Alma'Louise Lamer, to Alfred E. Sander, Esq., as and for his fees, as such commissioner in these proceedings, the sum of $350.” A like provision was made for the other plaintiff. This order the Farmers’ Loan and Trust Company entirely disregarded, although . served with a certified copy of the order, probably upon advice of counsel, as it had never been a party to the proceeding in any way. . The amount of the two orders not being paid, the plaintiffs brought ■these actions, upon the theory that the order of the court, never, having been appealed from, was an adjudication that the defendant owed them the sums fixed by such order, and that there was an implied promise on her part to pay the fees'of the commissioners in the proceeding brought to determine her capacity to deal with her own property. - ' Sections 2333, 2334 and 2330 of the Code of Civil Procedure deal with the questions of costs and expenses in matters of this character, and we find no justification for awarding any costs against . the defendant in the proceeding before the commissioners, which proceeding resulted in á determination that she was not incapable of managing her own affairs. The orders, if obeyed, might result in taking her funds for the payment of the claims of the plaintiffs but as they did not direct her to do anything, and the court did not have jurisdiction of the Farmers’ Loan and Trust Company in connection with that proceeding, there was no occasion for her to appeal from the orders. They did not constitute an adjudication that she owed the plaintiffs anything, and they could not, therefore, afford any foundation for the causes of action attempted to be set up in the pleadings. The judgments appealed from should be affirmed, with costs. Hirschberg, P. J., Bartlett and Hooker, JJ., concurred. In each case judgment of the Municipal Court affirmed, with costs.