In re New Rochelle Trust Co.

Appellant, the committee of an incompetent, appeals from an order, made at Special Term, denying its application for leave to sell certain personal property belonging to the incompetent, and for authorization to invest the proceeds of sale and other funds of the incompetent. The Special Term did not pass on the merits of the application, but denied the motion on the ground that the matter involved the exercise of discretion vested in the committee, and that the court should not advise the committee as to the manner in which such discretion should be exercised. Appeal dismissed. The order appealed from, having been made ex parte, is not appealable. In dismissing the appeal, however, we deem it advisable to state that, in our opinion, the committee was entitled to a decision on the merits with respect to its application for authorization to sell personal property. No such authorization was necessary, however, with respect to the investment of proceeds of the sale or other funds of the incompetent. (Personal Property Law, § 21.) The committee, if so advised, may resubmit to the Special Term the application for leave to sell and, if such application be denied, may make application to this court, pursuant to sections 66 and 132 of the Civil Practice Act. Lewis, P. J., Carswell, Nolan, Sneed and Wenzel, JJ., concur.