In re the Application of Ashley

Counsel for the appellant insists that the provisions of section 2336 of the Code of Civil Procedure are mandatory, and that where & committee of the property is appointed in a lunacy proceeding the court must direct the payment by him out of the funds in his hands of the necessary disbursements of the petitioner. Assuming, without deciding, that this view is correct, there can be no doubt, that the petitioner through his or her attorney could consent that the court direct that a part of the disbursements be paid, not out of funds in the hands of the committee, but out of other moneys belonging to the incompetent person. This is precisely what tJie learned judge below declares to have been done in the present case.. By the order appealed from he has amended the original prdei by *139inserting therein a recital to the effect that “ by the consent of the attorney of the petitioner ” $500 of the sum allowed said petitioner is to be paid out of moneys in the hands of the Massachusetts committee. We cannot assume that this recital, carefully inserted after a full review of the occurrences attending the making of the original order, is untrue. It must represent the judge’s recollection of what occurred, stated under the sanction of his official oath ; and if such a consent was given the petitioner cannot complain of the order either in substance or form.

Present — Goodrich, P. J., Bartlett, Woodward, Hirschberq- ¡and Jenks, JJ.

Orders affirmed, with ten dollars costs and disbursements.