In re Stolworthy 18 A.D.2d 692

In a proceeding to appoint a committee of the person and property of an alleged incompetent, said alleged incompetent appeals from an order of the County Court, Nassau County, entered August 17, 1962, which denied her motion to dismiss the petition and instead appointed a psychiatrist to examine her and to report to the court concerning her competency. Order reversed on the law and the facts, with $10 costs and disbursements; motion granted, and petition dismissed. The proof in this record does not raise the satisfactory presumption of ineompeteney nor the need for a committee which is essential to the issuance of a commission; hence, the petition must be dismissed (Rules Civ. Prac., rule 287). Matter of Schermerhorn, 277 App. Div. 845, affd. 302 N. Y. 660; Matter of Burke, 125 App. Div. 889; Matter of Tompkins, 183 App. Div. 474; Matter of Lang don, 173 App. Div. 737). The appointment of a psychiatrist to examine the alleged incompetent falls with the dismissal of the petition. In any event, the court could not require the alleged incompetent to be examined, preliminarily, to determine whether a commission should issue (Matter of Tompkins, supra, p. 475; Matter of Silverman, 256 App. Div. 1056; Matter of Frank, 250 App Div. 756; Matter of Grau, 205 App. Div. 893). Kleinfeld, Acting P. J., Brennan, Hill, Rabin and Hopkins, JJ., concur.