In re the Appointment of a Committee of the Person & Property of Roe

Order entered November 29, 1967, modified on the law and the facts, to the extent of redutiihg the fee of $2,500 awarded the Commissioner as and for his compensation to the sum of $1,000, and except as so modified, affirmed, with costs and disbursements to all parties filing briefs payable out Of the incompetent’s estate. (She Matter of Rice, 22 A D 2d 339.) Although we take a dim view of the petitioner’s instituting the proceeding in New York County, when the incompetent was domiciled here only sporadically, we accept the proceeding because it was permitted to go forward to a conclusion, with no motion made for change of venue. Indeed, the main objectant filed no answer to the petition and not only participated in the ineompeteney proceedings without murmur, but also offered himself for consideration as committee, and joined in the confirmation of ineompeteney. Further, all of the banking relationships óf the incompetent of any substantial nature are with New York City banks; the bulk of his securities, represented to have a market value of over eight million dollars, are located in a safe-deposit box maintained at the Bank of New York, 530 Fifth Avenue, which bank has been designated as eoexeciitor and cotrustee under his last will and testament. The choice of venue does not appear to have been made as a result of any element of bad faith or fraud; nor is the proceeding defective jurisdictionally. (Matter of McKitterick, 286 App. Div. 885.) Concur—Stevens, J. P., Tilzer and McGivern, Jj.; Eager and Steuer, JJ., dissent in the memorandum J.: