Misc.] Supreme Court, June, 1900. GAYNOR, J.: This motion is made under section 545 of the Code of Civil Procedure to strike out as << irrelevant" matter pleaded as a "defence ". "defence". The matter designated constitutes all of the matter so pleaded except a small part of it which if left alone could be to no purpose whatever. Why it is not included in the motion does not appear. The motion must therefore be deemed one to strike out the so-called defence in its entirety. Such a motion cannot be made, even though the matter does not constitute any defence, as seems to be the case here. The Code provision for the striking out of irrelevant matter obviously does not contemplate the striking out of an entire cause of action or of an entire defence for stating insufficient facts to constitute a cause of action or a defence, but only the striking out of irrelevant matter stated in a good cause of action or defence. The remedy is by demurrer (Code Civ. Pro., § 494; Walter v. Fowler, 85 N. Y. 621). It would serve no purpose to refer to the cases apparently to the contrary. Most of them are old, and none of them are authoritative. Motion denied. Matter of SARAH E. McCUSKER. (Supreme Court, New York Special Term, June, 1900.) 1. Incompetent person Notice, on application by committee for accounting and discharge Special guardian. Where the committee of an incompetent person, consisting of several members, apply for permission to account, one of their number desiring to resign, no order of reference to pass the account can be granted where neither the incompetent, nor the officer of the institution where she is confined, have been served with notice of the application, and where no special guardian has been timely appointed to represent the incompetent on the accounting. 2. Same-Rival applications, for an accounting, by different attorneys. Where, after an attempt had been made to amend the original proceeding, but without the concurrence of the member desiring to resign, the latter began a new and regular proceeding by a new attorney in whom he had greater confidence, and it appeared that the original attorney had been paid for his services, the court considered Supreme Court, June, 1900. [Vol. 32. that only the latter proceeding was regular and should be carried through, but it permitted the original attorney to appear therein for the other members of the committee. APPLICATIONS by the committee of an incompetent person for an accounting and discharge. Francis C. Devlin, for committee. Hugo J. Stetzner, for petitioner. FITZGERALD, J. There are presented to the court in this proceeding for decision four applications on opposing papers, all arising from the original application of one, the committee of a lunatic, to be allowed to resign; for the discharge of the committee and for the release of their sureties upon the judicial settlement of the account filed with said petition. In that original proceeding, instituted by an attorney upon the written retainer of all of the committee, an order of reference was made to take and state the account of the committee, in which order the appearance of the incompetent by an attorney was recited. The matter coming on for hearing before the referee, it was discovered and certified by him that the court had no jurisdiction to make the order of reference, as the incompetent and the officer of the institution in which she is confined had not been served with notice of the application of the accounting, as required by section 2342 of the Code, read in connection with sections 2323a and 2325 thereof, and because no special guardian for the protection of the rights and interests of the incompetent in the proceeding had been appointed by the court, in accordance with section 2342. Accordingly, the proceedings before the referee were suspended. If there were any doubt in the minds of the parties that the opinion of the referee was correct, and his action proper, it would be settled by the language of the Court of Appeals in Matter of Blewitt, 131 N. Y. 541, in which the court says: "The cases must be very rare in which a notice may not be served on the alleged lunatic, and it seems to us the better practice would be to require service of notice upon the party (if within the jurisdiction) in all cases, in addition to notice to relatives and others, as required by section 2325 of the Code." And by the mandatory language of section 2342 of the Code making it the duty of the court to appoint a special guardian. The correctness of this view seems to have been acquiesced in by Misc.] Supreme Court, June, 1900. all parties, and with this conceded rule of practice we may start. The attorney who brought the original proceeding then applied to the court for an order appointing a special guardian of the incompetent and an order of reference to take and state the committee's account his motion being based upon a notice of the filing and presentation to the court of the committee's account, of the petition and resignation of the original committeeman, upon the affidavit of the attorney of the invalidity of the former proceeding, and upon proof of service of notice of the application, and of the papers on which it is founded, upon the incompetent, the officer in charge of the asylum and the next of kin. Then, before the said motion. was returnable, the resigning and original petitioning committee obtained through another attorney an order directed to the first attorney to show cause why the proceedings begun by him should not be discontinued, and why he should not be restrained from proceeding further, and staying all actions by him; the said order was granted on the affidavits of the said committeeman, reciting the former proceedings and the invalidity thereof, the manner in which the attorney was retained by the committeeman, the delay and error of the said original attorney, his payment in full for services rendered by him; that the amended proceeding brought by the original attorney for the appointment of a special guardian and referee was without the said committeeman's knowledge, consent or authority; that another attorney had been retained by him and had brought a new proceeding, in strict accordance with the requirements of the statute and upon due legal notice to all interested parties, for an order allowing the committee to make and state the account, for the judicial settlement of the same, and, upon said settlement, for an order allowing the petitioning committeeman to resign and release the sureties, and for the appointment of a special guardian for the incompetent. An examination of the papers upon which the new proceeding was brought by the new attorney shows that every requirement of the statute as to form of application and notice to parties has been strictly complied with; it is made upon a new resignation of the committeeman and upon his new petition reciting his appointment and qualification, all of the facts as to the incompetent and her next of kin necessary to bring them within the jurisdiction of the court, a disagreement among the members of the committee to the detriment of the trust fund, and the institution and irregularity of the former proceed Supreme Court, June, 1900. [Vol. 32. ings. Then the original attorney obtained an order directed to the said resigning and petitioning committeeman to show cause why the former order to show cause and stay of proceedings obtained for the said committeeman by his new attorney should not be vacated and set aside; the said order was granted on the affidavit of the original attorney reciting the facts already referred to as to the institution and irregularity of the former proceeding, the amended proceeding brought by him, the authorization to him by two of the committee to continue the proceedings. All of these applications based upon notice of motion and order to show cause as aforesaid were made returnable at the one time, and are now before the court for decision. The complicated situation is evidently due to an unfortunate disagreement among the members of the committee, encouraged by that litigious spirit of their attorneys which is indicated by their frequent and unnecessary applications. Under such circumstances the paramount duty of the court, while deciding the petty controversies between the parties and the attorneys, is to see that the rights and interests of the incompetent do not suffer. In deciding all of these applications it is only necessary for the court to consider and determine the regularity and priority in law of the two new proceedings the one brought by the original attorney and the one brought by the new attorney of the resigning and petitioning committeeman; all of the questions raised upon the other applications are subordinate to and dependent upon this. A careful reading of all the papers, including the lengthy affidavits finally submitted, renders it evident that the application made by Mr. Stetzner by notice of motion, dated April 9, 1900, and returnable April 19, 1900, and upon petition of the resigning committeeman, verified April ninth, is the one upon which the court must proceed. All of the proceedings, including the accounting, arise from the resignation of said committeeman, and were instituted by his petition; the new application by his new attorney is expressly authorized by him; whereas the amended proceeding by the original attorney is without his knowledge, consent and authority, and against his wishes. If the court would litigate the controversy between attorney and client and hold the committeeman to his original retainer, it must be remembered that in this case the allegation by the committeeman that the attorney has been fully paid for his services has not been denied by the latter, and the committeeman would then have Misc.] Supreme Court, June, 1900. the undoubted right, which he evidently exercised in this case, of providing against the mistakes and delays which had occurred, by the retention of a new attorney of whose ability and integrity he had no question, and by the institution of new and proper proceedings. Again the new application by the new attorney conforms strictly with the requirements of section 2342 that notice of application for accounting be given in the manner in which and to the persons to whom notice is required to be given by sections 2323a and 2325, whereas the amended proceeding does not strictly comply with this requirement, being an application for the appointment of a special guardian and referee to correct the former proceeding, of which the incompetent had no notice, and was not subject to the jurisdiction of the court therein. The new application by the new attorney for the resigning committeeman is made upon the required notice to all the parties specified in the Code; whereas the amended proceeding by the original attorney, though based upon the petition of one of the committeemen, is founded upon no notice to the others, and though the appearance of the next of kin by attorney is admitted and recited, the papers show no proof of service of notice of the application upon said attorney. While such notice and proof may not have been strictly required by the Code, yet proper and regular practice invariably requires it. Again, the proceedings by the original attorney are open to the possible objection suggested by the Court of Appeals in Gridley v. College of St. Francis Xavier, 137 N. Y. 330, in which case the court says: "We do not deem it important now to determine whether the proceedings would be absolutely void and a nullity if no notice whatever had been given to the idiot of any of the proceedings instituted. * * *They would have been invalid undoubtedly in the sense that they would have been set aside as irregular upon the application of any person who had a right to be heard." Finally, the petitioner and resigning committeeman is, it appears from the papers, the member of the committee who furnished its large bond, and who, therefore, is most interested in the settlement of the committee's accounts, and the court should not deny him the right to institute by a new attorney, of whose ability and character he is satisfied, proceedings in strict conformity with the statute, in place of former irregular proceedings, an unauthorized new application by an attorney in whom he has lost confidence, and whom he has fully paid for his former services. It |