entitled to the same compensation as an executor or administrator. But in a special case where his services exceed those of an executor or administrator, the supreme court or a superior city court or a county court within the county may allow him such an additional compensation for such additional services as it deems just. The compensation of a committee of the person must be fixed by the court and paid by the committee of the property if any, out of the funds in his hands. The additional compensation authorized by this section may be allowed to the committee u on any judicial settlement made by him, and shall be for such additional services up to and including such settlement.

§ 2339. A committee, either of the person or of the property, is subject to the direction and control of the court by which he was appointed, with respect to the execu tion of his duties; and he may be suspended, removed, or allowed to resign, in the discretion of the court. A vacancy created by death, removal, or resignation, may be filled by the court. But a committee of the property cannot alien, mortgage or otherwise dispose of, real property, except to lease it for a term not exceeding five years, without the special direction of the court, obtained upon proceedings taken for that purpose, as prescribed in title seventh of this chapter.

§ 2340. A committee of the property, appointed as prescribed in this title may maintain, in his own name, adding his official title, any action or special proceeding, which the person, with respect to whom he is appointed, might have maintained, if the appointment had not been made.

$2341. [Am'd 1894.] The provisions of article two of title seven of chapter eighteen of this act, requiring the general guardian of an infant's property, appointed by a surrogate's court, to file in the month of January in each year an inventory, account and affidavit and prescribing the form of the papers so to be filed, apply to a committee of the property appointed, as prescribed in this title. For the purpose of making that application the committee is deemed a general guardian of the property; the person with respect to whom he is appointed, is deemed a ward and the papers must be filed in the office of the clerk of the court by which the committee was appointed, or if he was appointed by the supreme court, in the clerk's office where the order appointing him is entered. In every case where a committee has used or employed the services of an incompetent person, with respect to whom he has been appointed a committee, or where moneys have been earned by or received on behalf of such incompetent person, the committee must account for any moneys so earned or derived from such services, the same as for other property or assets of the incompetent person.

13 Civ. Pro.

370.

138 N.Y. 150.

17 N. Y.

283.

§ 2342. In the month of February of each year, the presiding judge of the court, by which the committee of the property was appointed; or, if he was appointed by the supreme court, the county judge of the county where the order appointing him is entered; must examine, or cause to be examined under his direction, all accounts and inventories filed by committees of the property, since the first day of February of the preceding year. If it appears, upon the examination, that a committee, appointed as prescribed in this title, has omitted to file his annual inventory or account, or the affidavit relating th-reto, as prescribed in the last section; or if the judge is of opinion that the interest of the person, with respect to whom the committee was appointed, requires that he should render a more full or satisfactory inventory or account; the judge must make an order, requiring the committee to supply the deficiency, and also, in his discretion, personally to pay the expense of serving the order upon him. An order SO made may be entered and enforced and the failure to obey it may be punished, as if it was made by the court. Where the committee fails to comply with the order within three months after it is made, or, where the judge has reason to believe, that sufficient cause exists for the removal of the committee, the judge may, in his discretion, appoint a fit person special guardian of the incompetent person, with respect to whom the committee was appointed, for the purpose of filing a petition in his behalf, for the removal of the committee, and prosecuting the necessary proceedings for that purpose. The committee may be compelled in the discretion of the court, pay personally the costs of the proceedings so instituted.

to

§ 2343. Where a person, with respect to whom a committee is appointed, as prescribed in this title, becomes competent to manage himself or his affairs, the court must make an order, discharging the committee of his property, or the committee of his person, or both as the case requires; and requiring the former committee to restore to him the property remaining in the committee's hands. Thereupon the property must be restored accordingly.

§ 2344. Where a person of whose property a committee State Rep. has been appointed, as prescribed in this title, dies during his incompetency, the power of the committee ceases; and the property of the decedent must be administered and disposed of, as if a committee had not been appointed.

TITLE VII.

Proceedings for the disposition of the real property of an infant, lunatic, idiot, or habitual drunkard.

§ 2345. In either of the following cases, an action may 136 N.Y. 10 be maintained against an infant, or a person incompetent to manage his affairs by reason of lunacy, idiocy, or habitual drunkenness, to procure a judgment, directing a conveyance of real property, or of an interest in real property:

1. Where the infant or incompetent person is seized or possessed of the real property, or interest in real property, by way of mortgage, or only in trust for another.

2. Where a valid contract for the sale or conveyance of the real property, or interest in real property, has been made; but a conveyance thereof cannot be made, by reason of the infancy or incompetency of the person in whom the title is vested.

§ 2346. [Am'd 1882.] An action may be maintained, in a case specified in the last section, by a person entitled to the conveyance; and also in a case specified in subdivision second of that section, by the executor or administrator of the person who made the contract, or of a person who died seized or possessed of the real property, or interest in real property, or by an heir or devisee of either of those persons, to whom the real property has descended, or was devised. The action may be maintained by the committee of the lunatic or other incompetent person; but in that case the court must appoint a special guardian for the incompetent person, as required by law, where an infant is defendant, and the proceedings are the same as in a like action against an infant.

§ 2347. A judgment, directing such a conveyance, shall not be rendered, unless the court, after hearing the parties, is satisfied that the conveyance ought to be made. Upon rendering final judgment to that effect, the court has power to direct the guardian of the infant's property, or the committee of the property of the lunatic or other incompetent person, or a special guardian appointed in the action, to execute any conveyance, or to do any other act, which is necessary, in order to carry the judgment into effect,

23 Abb. N. C. 15.

5 Dem. 272.

§§ 2348-2350 § 2348. [Am'd 1890, 1893.] In either of the following cases real property, or a term estate or other interest in real property, or an inchoate right of dower in real property, belonging to an infant or a person incompetent to manage his affairs by reason of lunacy, idiocy or habitual drunken. ness, may be sold, conveyed, mortgaged, released or leased, as prescribed in the following sections of this title:

1. Where the personal property, and the income of the real property, of the infant or incompetent person. are, together. insufficient for the payment of his debts, or for the maintenance and necessary education of himself and his family.

2. Where the interests of the infant or incompetent person require or will be substantially promoted by such disposition, on account of the real property or term, or estate, or other interest in real property being exposed to waste or dilapidation; or being wholly unproductive, or for the purpose of raising funds to preserve or to improve the same, or for other peculiar reasons, or on account of other peculiar circumstances.

3. Where an action might be maintained against the infant or incompetent person, to procure a judgment, directing the conveyance of the real property or interest in real property, as prescribed in sections twenty-three hundred and forty-five and twenty-three hundred and forty-six of this act.

§ 2349. An application, in either of the cases prescribed in the last section, must be made by the petition of the general guardian, or the guardian of the property of the infant; or by the committee of the property of the lunatic or other incompetent person; or by any relative, or other person, in behalf of either. Where the application is in behalf of an infant of the age of fourteen years or upwards, the infant must join therein. Where the application is made to the supreme court, the petition must be presented at a term held within the judicial district, in which the property or a part thereof, is situated.

§ 2350. [Am'd 1893.] The petition must be verified in like manner as a verified pleading in an action in the supreme court. It must set forth the grounds of the application; and in a case specified in subdivisions first and second of the last section but one, other than a case where the applica

2351-2352

on is made for the sale of an undivided interest of the inant or incompetent person in one or more parcels of land n order to avoid an action of partition on the part of his o-tenants, it must also state the particulars and value of the eal and personal property, and the amount of the income f the infant or incompetent person; the disposition which as been made of his personal property, and an account of he debts or demands, if any, existing against his estate. n the case above specified where the application is made or the sale of an undiv.ded interest of the infant or incompetent person, the petition must state th particulars and alue of the real property in respect to which a sale is esired.

§ 2351. [Am'd 1893.] An application to sell, mortgage, or lease real property, or an interest in real property, of a unatic, idiot, or habitul drunkard, cannot be granted, uness a committee of his property has been appointed. Upon uch an application, if it is made by the committee, the court must make an order, directing him to file with the clerk a pond, in such an form, in such an amount, and with such sureties, as it directs, conditioned for the faithful discharge of his trust; for the paying over and investing of, and accounting for, all money received by him in the special proceeding, according to the direction of any court having authority to give directions in the premises; and for the observance of the directions of the court, in relation to the crust.

If the application is made by any other person, an order must be made thereupon, requiring the committee to show cause why he should not file such a bond. If, after hearing the committee, the court is of opinion, that there is probable cause for granting the application, it may make an order, requiring the committee to file such a bond; or, if the committee so elects, or fails to file the bond as directed in the order, it may appoint a suitable person to be the special guardian of the incompetent person, with respect to the proceedings; who must thereupon file such a bond. Where an application is made to release an inchoate right of dower, application must be made by the husband of the lunatic, idiot or habitual drunkard and may be made before or after a committee has been appointed. The court may appoint the husband special guardian, and he must file a bond as herein provided.

§ 2352. [Am'd 1893.] Upon an application to sell, mortgage or lease real property or an interest in real property of an infant, the court must appoint a suitable person to be the special guardian of the infant with respect to the pro