MATTER OF AHO

JONES, J.

We hold that the attorneys who represented this alleged incompetent in the proceedings which resulted in the adjudication of her incompetency had authority to prosecute the appeal from such adjudication and therein to seek review of the denial of the motion for change of venue.

This proceeding was initiated by two nieces of Olga Aho to have their 85-year-old aunt declared incompetent and a committee of her person and property appointed. The petition instituting the proceeding was brought on by order to show cause dated June 29, 1973 in which a guardian ad litem was appointed to protect the interests of the alleged incompetent. Venue was laid in Supreme Court, Westchester County. On July 16, 1973, the firm of attorneys who had been representing the alleged incompetent for the previous 15 months made a demand for change of venue to Schenectady County where Olga Aho was then sojourning with a cousin of her deceased husband. On July 19 the guardian ad litem made a preliminary report in which he reported that he had personally interviewed the alleged incompetent and had arranged for her examination by a psychiatrist selected by him who had concluded that Olga Aho was incompetent to manage her affairs. In conclusion he urged an early jury trial to determine the issue of incompetency.

On July 26 the attorneys representing the alleged incompetent made a formal motion under CPLR 511 (subd [b]) for change of venue to Schenectady County. Among the affidavits submitted in opposition was that of the guardian ad litem, in which he described the circumstances from which he concluded that she was domiciled in Westchester County and again urged an early jury trial to determine the issue of competency. By order dated August 3, Supreme Court denied the motion for change of venue and set the matter down for trial on August 8.

The attorneys for the incompetent immediately appealed from the order of August 3 and by order to show cause containing a temporary stay sought a stay of trial. The stay was denied by the Appellate Division on August 16, and on August 23, before argument of the appeal, the proceeding was peremptorily set down for trial on September 6.

The jury was drawn on September 6 and the trial was held on September 7. It was the unanimous verdict of the jury that Olga Aho was incompetent to manage her affairs. By judgment entered September 18, she was formally adjudicated an incompetent and the court accordingly appointed committees of her person and of her property.

On October 16 the attorneys who had been representing Mrs. Aho served a notice of appeal to the Appellate Division from the Supreme Court judgment of September 18 expressly excluding therefrom any appeal from the adjudication of incompetency, but seeking by such appeal to bring up the intermediate order of August 3 denying the motion for change of venue. By order dated December 27, 1973 on their application the attorneys for the petitioners in the incompetency proceedings were authorized to represent the interests of the petitioners on the appeals to the Appellate Division.

On February 8, 1974 the attorneys for the petitioners moved to dismiss the appeals to the Appellate Division from the August 3 order denying the motion for change of venue and from the September 18 judgment, on the ground, inter alia, that the attorneys who had been representing Olga Aho had no standing or authority to represent her following the adjudication of her incompetency. The Appellate Division denied this motion with leave to renew on argument of the appeals.

On October 18, 1974 following argument the Appellate Division dismissed the appeals. We now modify that disposition.

Addressing first the Appellate Division's conclusion that the authority of the incompetent's prior attorneys to represent her ceased on the adjudication of incompetency, our point of departure is Carter v Beckwith ( 128 N.Y. 312). In that case an adjudicated incompetent had requested an attorney to prosecute proceedings on behalf of the incompetent to supersede the commission of lunacy previously issued against him and to have the possession and control of his property restored to him. The proceedings failed, it having been determined that the lunacy still continued. The attorney then made application to the court for an allowance payable from the assets of the lunatic for the services rendered notwithstanding that the effort had been unsuccessful, but that proceeding abated on the death of the incompetent. Thereafter, the attorney renewed his claim against the incompetent's estate and was resisted by the administrators. In upholding a recovery by the plaintiff attorney, the court, although acknowledging that the incompetent could not enter into a binding contract of retainer, nevertheless said of the role of the attorney for the incompetent (p 319): "[A]s this exercise of the jurisdiction of the court to deprive a person of his liberty and property on the ground of lunacy, however necessary, is, nevertheless, the exercise of a supreme power, and should be surrounded by all reasonable safeguards to prevent mistake or fraud, so, also, where upon a case presented after inquisition, there is reasonable ground to inquire whether the lunacy still continues, it is highly important for the protection of the rights of the party that he should be afforded all reasonable facilities for the prosecution of the inquiry, and it cannot, we think, be doubted that the court has the power on an application to supersede the commission, where it is convinced that there is probable cause, or even, in a doubtful case, to make the reasonable costs and expenses of the traverse a charge upon the lunatic's estate, and this although the traverse prove unsuccessful. Unless this power exists, the direction of the statute that on the restoration of reason and the capacity of the lunatic to conduct his affairs, his real and personal estate shall be restored to him, would, in some cases, afford but a barren protection."

What was said in the Carter case is equally true today, and we look with the same responsible concern on the right of an alleged incompetent to representation by personal counsel where it is sought in the first instance to invoke "the jurisdiction of the court to deprive a person of his liberty and property on the ground of lunacy". To be sure, in Carter, the precise issue was the personal attorney's right to compensation and not his right to appear. But the language of the court's opinion makes it clear that the latter was subsumed in the recognition of the former. Neither right was there predicated on the law of contracts. Rather the appearance of the personal attorney and his attendant entitlement to compensation sprang from the fundamental right of the incompetent person, in a matter of such gravity and consequence, to have access to "all reasonable facilities" for the prosecution of the inquiry into the propriety of the continuation of the adjudication of lunacy.

Common sense dictates that if an adjudicated incompetent has the right to representation in an application which attempts to set aside an earlier determination of his incompetency, an alleged incompetent surely must be accorded a corresponding right on appeal in the original incompetency proceeding itself. (As to the right of an incompetent to representation by counsel until final adjudication on appeal generally, see Insanity Proceeding — Right to Counsel, Ann., 87 ALR2d 950, 961-962.) To hold otherwise would be to cut short the alleged incompetent's right of review at the initial determination of incompetency and to limit him to but a single judicial consideration of an issue and related questions, the significance of which to him defies exaggeration.

Nor might it be assumed that the committee or a guardian ad litem for the incompetent, if one be appointed, would sedulously carry out the wishes of the incompetent person with respect to an appeal. The committee, whose status derives from the adjudication of incompetency, has an apparent conflict of interest with the incompetent who wishes appellate review of the process which led to the committee's designation. Moreover, the committee's responsibility is only to function as agent of the court in the exercise of the latter's jurisdiction over the incompetent and his property. (Mental Hygiene Law, § 78.01; Matter of McGuinness, 290 N.Y. 117.)

So too, a guardian ad litem may of necessity be obliged to act contrary to the desires of the incompetent and to adopt a position adverse to that urged by his ward. In the discharge of his objective responsibility, the guardian may conclude that the best interests of the incompetent would not be served by prosecuting an appeal. It is incumbent on a guardian to make an objective evaluation of the circumstances and to take such action as will advance what he perceives to be the best interests of the ward; the wishes of the ward will be relevant but not determinative. In the present case the guardian determined to oppose the motion for change of venue; clearly he could not then be expected to take an appeal from the denial of that motion.

Thus, neither the committee nor a guardian ad litem may be regarded as an unbiased protagonist of the wishes of an incompetent seeking appellate review of some portion of the incompetency proceedings; only counsel directly responsive and accountable to the incompetent, whose duty is to carry out the subjective wishes of his client to the best of his ability by appropriate means, can fill this position. It was therefore error to have dismissed the appeals taken to the Appellate Division on the ground that the authority of the incompetent's personal counsel further to prosecute the proceeding had terminated on the adjudication of incompetency.

The fact that on these appeals it was sought only to attack the denial of the motion for change of venue and not to challenge the finding of incompetency does not vary our conclusion as to the authority of personal counsel. The determination of the venue motion — as will be noted shortly — underlay all that followed including the transfer of control over the incompetent's property, and review of that determination, with the aid of counsel, was a significant right of Mrs. Aho. If a committee is to be appointed, the choice of jurisdiction to make the appointment and thereafter to supervise the actions of the committee may well be an issue of the greatest practical significance.

In sustaining the authority of the incompetent's attorneys to prosecute the appeals we express no view with respect to these attorneys' right to compensation, a matter not before us. We invite attention, however, to the strictures set out in Carter v Beckwith ( 128 N.Y. 312, supra) on assessment of such a charge for legal services against property of the incompetent — i.e., that it be the reasonable cost of necessary assistance furnished in connection with proceedings which were fair and not vexatious or groundless and for which there was probable cause, perhaps in an appropriate instance even in a doubtful case. (See, also, Code of Professional Responsibility, especially EC 7-4, DR 7-102, subd [A], par [2].)

We turn then to the other procedural dispositions at the Appellate Division. The personal attorneys sought to raise the venue issue by two means — (1) by direct appeal from the intermediate order of August 3 which denied the motion for change of venue and (2) by appeal from the September judgment following trial which it was asserted also brought up the order of August 3 for review on the ground that that order, although nonfinal, necessarily affected the final judgment (CPLR 5501, subd [a], par 1). The Appellate Division held, and correctly in our view, that any right of direct appeal from the August 3 order terminated with the entry of the September judgment (Dayon v Downe Communications, 42 A.D.2d 889; Matter of New York Life Ins. Co. v Galvin, 41 A.D.2d 83, 86). Appellate review of that intermediate order was thereafter available only on appeal from the final judgment on the ground asserted, namely that such order necessarily affected such judgment. Thus, irrespective of the authority of the personal attorneys to prosecute the appeal, the direct appeal from the August 3 order was properly dismissed.

We disagree with the Appellate Division, however, to the extent that it held that the August 3 order was not reviewable on the appeal from the September judgment. The intermediate order of August 3 necessarily affected the final judgment. Whatever may be the rule in other cases (to which we do not now speak), reversal of an order denying the motion for change of venue in any proceeding to determine competency would strike at the foundation on which the final judgment was predicated. In this case any such reversal would inescapably have led to a vacatur of the judgment declaring Mrs. Aho incompetent and to the submission of the issue of incompetency to a court where venue might then properly be laid. Thus, in our view, it was error to conclude that such latter appeal did not bring up for review the order of August 3 denying the motion for change of venue (see Siegel, Supplementary Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 5501, 1975-1976 Pocket Part, pp 222-223; semble contra Matter of Seltzer v Wendell, 11 A.D.2d 805).

Although the Appellate Division in dismissing the appeals did make a comment on the merits of the venue question, we do not interpret what was written as an effective determination of that issue. The definitive disposition at the Appellate Division was a dismissal of the appeals. Such a disposition precluded that court's consideration of the appeal on the merits. Nor, presumably on the same analysis, have the attorneys fully briefed the venue issue in our court. Accordingly, the order of the Appellate Division should be modified to the extent that it dismissed the appeal from the September judgment and that appeal remitted to the Appellate Division for consideration on the merits. To the extent that the order dismissed the appeal from the August 3 order it should be affirmed.

GABRIELLI, J. (dissenting).

A majority of the court concludes that counsel, who allege that they are personal attorneys for Olga Aho, an adjudicated incompetent, have authority to appeal from the incompetency adjudication to the extent only of seeking review of the denial of their motion to change the venue of the incompetency proceeding. They do not contest the actual adjudication of incompetency and their apparent sole interest is the situs of the court where the appointment of the committee will be made. I am unable to agree with the conclusion that the denial of the venue motion is appealable and that counsel have the authority to prosecute the appeal from the denial of that motion. However, I take no position with respect to the dicta that such attorneys have the authority to prosecute an appeal from the incompetency adjudication for no such issue has been tendered, since counsel have expressly avoided appealing from so much of the order below that adjudicated Mrs. Aho incompetent.

Following a jury trial, the Supreme Court, Westchester County, declared Mrs. Aho, an octogenerian and long-time resident of Larchmont, New York, incompetent to manage herself and her affairs, and appointed a committee of her person and property. Counsel, purporting to be her personal attorneys, appealed (1) from the denial of their pretrial change of venue motion and (2) from only so much of the judgment that appointed committees of the person and property of Mrs. Aho. The Appellate Division unanimously dismissed the appeals, and held that no appeal lies from an intermediate order denying a change of venue, and also held that the attorneys were without legal authority to take the appeals.

Along with her husband, Mrs. Aho settled in Larchmont in the 1930's. Her husband died in 1950. They were childless. In April, 1972, Mrs. Aho retained counsel, the law firm of Hooker, Alley and Duncan of New York City, to assist her in the preparation of her will. In May, following an extended visit, her niece, petitioner Lillian Rhodes of Mankato, Minnesota, ascertained that Mrs. Aho was incapable of caring for herself or her affairs and arranged with a cousin of Mrs. Aho's husband to have her cared for temporarily in Rexford, New York, located in Schenectady County.

A year later, petitioner and another niece, Mrs. Aho's closest living relatives, commenced this proceeding in the Supreme Court, Westchester County, to have Mrs. Aho declared incompetent and to have a committee appointed to care for her and her affairs. A motion was made seeking a change of venue to Schenectady County on the ground that she was now a resident of that county. As indicated, the motion was denied and, following the trial, Mrs Aho was adjudicated incompetent and committees were appointed.

The threshold question is whether these attorneys have authority to maintain this appeal. The legislative scheme of the CPLR makes it unmistakably clear that they do not. CPLR 321 (subd [a]) provides that a party, other than one specified in CPLR 1201, may prosecute or defend a civil action in person or by attorney; and CPLR 1201 expressly and with the utmost clarity specifies that "a person judicially declared to be incompetent shall appear by committee of his property". The statutes are written in absolute terms and, without qualification, require that an incompetent may appear only by his or her committee. Were there any doubt, however, as to the application of those provisions, CPLR 1016 would certainly dispel it for there it is unequivocally stated that "[i]f a party is adjudicated incompetent, the court shall order substitution of his committee" (emphasis added). It is manifest, therefore, that the law of this State, as set forth by the Legislature, is that incompetents must appear by committee.

Nevertheless, the majority holds, erroneously I think, and without citation of authority or expression in precedent, that CPLR 321 and 1201 are directory only. That conclusion presents the judicial branch with the wholly unwarranted authority to overrule clear legislative determinations. While the word "shall" is not always imperative (see Munro v State of New York, 223 N.Y. 208; Matter of State of New York, 207 N.Y. 582), "`in the absence of ameliorating or qualifying language or showing of another purpose, the word "shall" is deemed to be mandatory.' (Matter of Mulligan v. Murphy, 19 A.D.2d 218, 223.)" (People v Ricken, 29 A.D.2d 192, 193, affd on opn below 27 N.Y.2d 923; see, also, Escoe v Zerbst, 295 U.S. 490; Black's Law Dictionary [4th ed], p 154.) Thus, here, where in each of three different sections (CPLR 321, subd [a]; CPLR 1016, 1201) the Legislature utilized the command form "shall", and no qualifying language or other purpose is evident, there can be no question but that the statutes were intended to be preemptive.

Furthermore, it seems quite improper to have counsel for adjudicated incompetents litigating matters without judicial control. The jury found that Mrs. Aho possessed $626,820.25 worth of personal property and had an annual income of approximately $30,000. The very purpose of statutes such as CPLR 321 (subd [a]) and CPLR 1201 is to insure that judicial surveillance be maintained. Additionally, it is provided in the Mental Hygiene Law that a committee is subject to the control of the court which appointed him (§ 78.15, subd [a]) and must post security to insure the proper execution of his duties (§ 78.09). To hold, as does the majority, that attorneys purportedly retained by an incompetent may conduct post incompetency adjudication litigation without court approval, renders nugatory the apparent objectives of the very legislation designed to protect an incompetent.

Carter v Beckwith ( 128 N.Y. 312), the predicate for the position of the majority, is not controlling. All that case determined was that an attorney who has been retained by an incompetent during his lifetime to challenge the continuing status of his competency may recover his fees from the estate of the incompetent. By way of contrast, there is nothing in the record now before us that shows that counsel were retained by Mrs. Aho to contest her competency and, indeed, they have neither challenged nor appealed from the finding of incompetency. Moreover, all that does appear is that they were once retained to write a will; no general retainer or authority beyond drafting her will has been alleged or shown. The obvious aim of their attack is the venue of the proceeding and the consequent appointment of Westchester County committees. Certain it is that the court in Carter did not address these concerns.

Illustrative of the proper approach is Sengstack v Sengstack ( 4 N.Y.2d 502). There we held that a court could entertain a separation action brought by a plaintiff who declared she was incompetent. We there pointed out with specificity that since she had not been judicially declared to be an incompetent, the court would allow the action. We carefully noted that courts, in such circumstances, must take special pains to protect such litigants and that this duty was fulfilled by the appointment of a special guardian and the direction that the guardian make an investigation of the situation and report to the court. No court in the appellate process of this case has ever been requested to make any such appointment nor has there been any judicial supervision of these present proceedings. I would conclude that her purported attorneys are without authority to represent her.

Reaching the merits, the majority merely states that the reversal of an order denying a motion for change of venue in a proceeding to determine competency (p 248) "would strike at the foundation on which the final judgment was predicated". I am unable to agree with that conclusion. Venue, basically, is of no jurisdictional consequence (cf. CPLR 509, 510, 511); and this waivable claim may not, therefore, be somehow elevated to postjudgment jurisdictional status. I conclude, as did an unanimous Appellate Division, that the venue objection was not reviewable.

The order of the Appellate Division should be affirmed.

Chief Judge BREITEL and Judges JASEN, FUCHSBERG and COOKE concur with Judge JONES; Judge GABRIELLI dissents and votes to affirm in a separate opinion in which Judge WACHTLER concurs.

Order modified, without costs, and matter remitted to the Appellate Division, Second Department, for further proceedings in accordance with the opinion herein and, as so modified, affirmed.