In re the Estate of Middlebrook , 255 A.D. 1021 ( 1938 )

Appeal from order judicially settling the account of the committee of an incompetent person, in so far as it directs, as a condition to granting the surety’s application to be relieved from liability on a bond of the committee, that the surety pay to the special guardian the sum of seventy-five dollars, fixed and allowed as his fee for services as such on an accounting necessitated by the surety’s application. Order, in so far as appealed from, affirmed, with ten dollars costs and disbursements. The control of the person and property of incompetents is of equitable cognizance. (Matter of Brock, 245 App. Div. 5, 11, 12.) There is no statutory provision in article 81-A of the Civil Practice Act, or elsewhere, which directs that in the event the surety seeks to exercise its rights under section 158 of the Civil Practice Act, the expenses or any part thereof so necessitated should be borne by the estate. The legislative authority permitting a surety to seek discharge from liability on a bond as a matter of right does not touch or impair the inherent power of a court of equity to determine upon whom the burden of costs in a proceeding in equity shall be placed. On this view, the Special Term, having the power to impose part of the costs upon the surety, did not act improvidently in requiring it to pay the allowance to the special guardian on the accounting necessitated by the application of the surety to be discharged from liability. A similar view obtained in a kindred situation. (Matter of Hidden, 243 N. Y. 499, 513.) Appeal from order of May 28, 1937, dismissed. The appeal therefrom is academic. Lazansky, P. J., Hagarty, Carswell, Davis and Johnston, JJ., concur.