¶1I am not able to concur in the affirmance of this order, even with the modifications directed hy the majority of this court; but if the order is to stand at all, those modifications are properly required.
¶2The majority of my associates are of the opinion that the court at Special Term should not have vacated the order of reference and denied the motion relating to the removal of Mr. Andrews as committee of the person of the incompetent. The charges against Mr. Andrews, all agree, are sufficiently grave to require investigation. The ground upon which Mr. Roosevelt as committee of the estate of the incompetent has been removed, is only the inharmonious relations existing between himself and Mr. Andrews. There is no proof that the estate has diminished or suffered in any way by reason of such relations. On the contrary, the estate has been well cared for and the accounts of the committee have been approved. If the charges against Mr. Andrews are proven and sustained, the inharmonious relations between him and Mr. Roosevelt may be explained readily and Mr. Roosevelt’s course, may perhaps be commended instead of meeting with reprobation and punishment.
¶3I am of the opinion that ,the proceeding concerning the removal of the committee of the estate of the incompetent should have been *469heard and disposed of independently of the other matters. In arriving at this conclusion, I wish to be distinctly understood as referring only to the procedure which in the circumstances of this case it seems to me would have been proper and should have been pursued. The learned justice at Special Term has followed his convictions and undoubtedly acted upon what he considered on the facts presented as being for the real interests of the incompetent. But on a very careful consideration of all that appears in the record now before us and all the facts to be gleaned therefrom, I agree with Mr. Justice Scott that the various motions and proceedings should not have been consolidated and disposed of as an entirety but that each should have been separately canned on to its conclusion and a separate order made therein.