to be fixed by the court, not exceeding ten dollars for each day to each of such commissioners. Where the costs and expenses exceed two hundred and fifty dollars, besides witness fees and allowances to commissioners, the committee shall not be at liberty to pay the same out of the estate in his hands, without a special order of the court, on notice to all parties who have appeared in such proceedings, directing such payment. Rule TITLE 35 INFANTS; THEIR GUARDIANSHIP AND MAINTENANCE 290. Petition for appointment. 291. Age of infant and amount of property to be ascertained by court. 292. Bond of general guardian. 293. Allowances for support of infants. 294. Application to compromise infants' claims. Rule 290. Petition for appointment. Except in cases otherwise provided for by law, for the purpose of having a general guardian appointed, the infant, if of the age of fourteen years or upward, or some relative or friend if the infant be under fourteen, may present a petition to the court, stating the age and residence of the infant and the name and residence of the living parents, if any, or of the person proposed or nominated as guardian, and the relationship, if any, which said person bears to the infant, and the nature, situation and value of the infant's estate. Rule 291. Age of infant and amount of property to be ascertained by court. On presenting the petition, the court, by inspection or otherwise, shall ascertain the age of the infant, and, if of the age of fourteen years or upward, shall examine him as to his voluntary nomination of a suitable and proper person as guardian; if under fourteen, shall select and name a competent and proper person as guardian. The court shall ascertain also the amount of the personal property, and the gross amount of value of the rents and profits of the real estate of the infant during his minority, and the sufficiency of the security offered by the guardian. Rule 292. Bond of general guardian. The security to be given by the general guardian of an infant shall be a bond in the penalty of double the amount of the personal estate of the ward and of the gross amount or value of the rents or profits of the real estate during his minority. The bond shall be executed by the guardian, together with at least two sufficient sureties, each of whom shall be worth the amount specified in the penalty of the bond over and above all debts. If the total amount of the personal estate of an infant and of the gross amount or value of the rents or profits of the real estate during minority shall exceed twenty-five hundred dollars, the bond must be the bond of a surety company authorized to do business in this state, or the general guardian may give a bond secured by a mortgage on improved and unincumbered real property, situated in this state, of the value of the penalty of the bond. The court, in its discretion, may vary the security where, from special circumstances, it may be found for the interest of the infant, and may direct the principal of the estate and any part thereof to be invested in the bonds of the state of New York or of the United States, or deposited with any trust company which shall have been designated as a depository for such moneys, or invested in bond and mortgage on unincumbered and improved property, within this state, of at least double the value of the amount invested, to be shown to the satisfaction of the court, for the benefit of the infants, and may direct that the interest or income thereof, only, be received by the guardian. Rule 293. Allowances for support of infants. A petition for the application of an infant's property, or any portion thereof, to the infant's support, maintenance or education, presented to the supreme court or the surrogate's court, shall set forth in detail: 1. The amount and nature of the infant's property, where situated and how invested, and his income from such property or any other source; 2. Whether or not the infant's parents are living, and, if either of them be living, all circumstances relative to his or her ability to support the infant; 3. The terms of any previous order made by any court in this state or elsewhere for the application of any portion of the infant's property, and the disposition made of any property pursuant thereto. When the petition is presented by a person other than the guardian of the property of the infant, notice shall be given to such guardian. Notice shall also be given to the father of the infant, if living, or if not, to his mother, or if neither be living, to the person with whom the infant resides, and to the infant himself, if he be of the age of fourteen years or upwards. Such notice shall be given in such manner and for such length of time prior to the hearing on the petition as the judge or surrogate shall direct. Rule 294. Application to compromise infants' claims. On any application for the approval by the court of a settlement of a cause of action belonging to an infant, the court shall require the attorney so applying to disclose his relation to the defendant, and whether he has become concerned in the application or its subject matter at the instance of such defendant, or has received or is to receive any compensation from such defendant and the amount thereof, or has had any part in negotiating such settlement; and thereupon, if the court or judge deem it necessary, a full examination may be had into all the facts regarding the reasonableness and propriety of such settlement. Rule TITLE 36 DISPOSITION OF REAL PROPERTY OF INFANTS OR INCOMPETENTS 295. Place of application. 296. Notice of application. 297. Contents of petition. 298. Report of referee. 299. When proceeds of sale of real property of infant may be paid to general guardian. 300. Limitation on costs and fees in proceedings to dispose of real property of infant. Rule 295. Place of application. If an application be made to the supreme court to sell, convey, mortgage, release or lease the real property of an infant or incompetent, the petition must be presented at a term held within the judicial district in which the property, or a part thereof, is situated. Rule 296. Notice of application. If an application to sell, convey, mortgage, release or lease the real property of an incompetent affect the interest of an incompetent person who has been committed to a state institution and is an inmate thereof, notice of such application must be given to the attorney-general and to the superintendent, acting superintendent, or state officer having jurisdiction over the institution where the incompetent person is confined. Rule 297. Contents of petition. The petition in a proceeding to sell, convey, mortgage, release or lease the real property of an infant or incompetent must be verified and must state: 1. The name, age and residence of the infant or incompetent; 2. The grounds of the application; 3. If the application be for the purpose of paying the debts of the infant or incompetent, or for the maintenance and necessary education of himself or his family, or substantially promoting his interests by such disposition, other than a case where the application is made for the sale of an undivided interest of the infant or incompetent person in one or more parcels of land in order to avoid an action of partition on the part of his cotenants, or for the dower of a widow therein, the particulars and value of the real and personal property, and the amount of the income of the infant or incompetent person; the disposition which has been made of his personal property; and an account of the debts or demands, if any, existing against his estate. In the case specified in this subdivision where the application is made for the sale of an undivided interest of the infant or incompetent person, the petition must state the particulars and value of the real property in respect of which a sale is desired. 4. The name and residence of the committee or of the person proposd as the special guardian, the relationship, if any, which he bears to the infant, lunatic, idiot or habitual drunkard, and the security proposed to be given. 5. Whether any previous application has been made, and, if so, the time thereof, and what disposition was made of the same. Rule 298. Report of referee. The referee appointed in a proceeding to sell, convey, mortgage, release or lease real property, or an interest therein, of an infant or incompetent, must report whether a sale, mortgage, release or lease of the premises, or any and what portion thereof, would be beneficial to the infant, lunatic, idiot or habitual drunkard, and the reasons therefor, and whether the infant, lunatic, idiot or habitual drunkard is in absolute need of some and what portion of the proceeds of such sale, mortgage or lease, for a purpose specified in the petition, in addition to what he might earn by his own exertions. Such referee shall ascertain also and report the value of the property, or interest, to be disposed of, specifically, as to each separate lot or parcel, with the incumbrances, if any, thereon, and whether there is any person entitled to dower or a life estate, or estate for years, in the premises, and the terms and conditions on which it should be sold. The referee's report shall give such further facts as are necessary or proper on the application. The facts in relation to the value of the property or interest to be disposed of, required to be ascertained and reported upon by the referee, must be proven on such reference by the testimony of at last two disinterested persons, in addition to that of the petitioner, and the report shall not refer to the petition, or any other papers, as evidence of fact. Rule 299. When proceeds of sale of real property of infant may be paid to general guardian. No money arising from the sale of the real estate of an infant shall be paid over to his general guardian, except so much thereof, or of the interest or income, from time to time, as may be necessary for his support or maintenance, unless such guardian shall give a bond, in the penalty of double the amount to be paid to him, with sufficient surety, to be approved by the court. If, however, such money shall exceed the sum of five hundred dollars, the court must require the guardian to give a bond of a surety company authorized to do business in this state or a bond secured by a mortgage on improved and unincumbered real property within this state of the value of the penalty of the bond. Rule 300. Limitation on costs and fees in proceedings to dispose of real property of infant. If the infant's interest in the property do not exceed one thousand dollars, the whole costs, including disbursements, shall not exceed twenty-five dollars and the expense of a surety bond, if one be required, and referee's fees not exceeding ten dollars. If several infants be interested in the same premises as tenants in common, the application in behalf of all shall be joined in the same petition, although they may have several general guardians; and there shall be but one reference to ascertain the propriety of a sale as to all and but one bill of costs shall be allowed. STATE OF NEW YORK CONVENTION TO CONSIDER AND ADOPT RULES OF CIVIL PRACTICE June 17, 1921. We, the undersigned, Alfred R. Page, Permanent Chairman, and Herbert L. Smith, Secretary, of the Convention to Consider and Adopt Rules of Civil Practice, pursuant to chapter nine hundred and two of the laws of nineteen hundred and twenty as amended by chapter three hundred and seventy of the laws of nineteen hundred and twenty-one, DO HEREBY CERTIFY that the foregoing Rules of Practice were adopted by such convention pursuant to such law by the affirmative votes of eight justices, constituting a majority of all the justices chosen to such convention, at a regular meeting thereof held at the Senate Chamber at the Capitol in the city of Albany on the seventeenth day of June, nineteen hundred and twenty-one; such convention having been regularly convened pursuant to such law on the second Tuesday of June, nineteen hundred and twenty, and regularly adjourned from time to time to that day. And we do hereby FURTHER CERTIFY that the foregoing rules were filed in the office of the Secretary of State, at the city of Albany, pursuant to said law, on the twelfth day of July, nineteen hundred and twenty-one. Given under our hands at the city of Albany, this twelfth day of July, nineteen hundred and twenty-one. ALFRED R. PAGE, Chairman. HERBERT L. SMITH, Secretary. |