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

Appellate Division of the Supreme Court of New York

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

253 A.D. 655, 3 N.Y.S.2d 745, 1938 N.Y. App. Div. LEXIS 8527

Appellate Division of the Supreme Court of the State of New York·Decided April 14, 1938·Published·Cited by 1 cases

Opinion

Per Curiam.

Although the petition and supporting affidavits establish prima fade the ineompeteney of the alleged incompetent, this did not necessarily require a trial by a jury of the questions of fact presented (Matter of Clarkson, 186 App. Div. 575; Matter of Burke, 125 id. 889; Matter of Wells, 177 id. 100), nor deprive the court of power to deny the application if in the exercise of a wise discretion it found that no useful purpose would be served thereby. In the present case we think the application should have been denied for the reason that the incompetent is receiving all the [656] care, and her property all the protection, which the special circumstances require.

The order should be reversed and the motion in all respects denied.

Present — Martin, P. J., O’Malley, Townley, Glennon and Untermyer, JJ.

Order unanimously reversed and the motion in all respects denied.

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Per Curiam.

Although the petition and supporting affidavits establish prima fade the ineompeteney of the alleged incompetent, this did not necessarily require a trial by a jury of the questions of fact presented (Matter of Clarkson, 186 App. Div. 575; Matter of Burke, 125 id. 889; Matter of Wells, 177 id. 100), nor deprive the court of power to deny the application if in the exercise of a wise discretion it found that no useful purpose would be served thereby. In the present case we think the application should have been denied for the reason that the incompetent is receiving all the [656] care, and her property all the protection, which the special circumstances require.

The order should be reversed and the motion in all respects denied.

Present — Martin, P. J., O’Malley, Townley, Glennon and Untermyer, JJ.

Order unanimously reversed and the motion in all respects denied.

In re the Appointment of a Committee of the Person & Property of Wiesenberg, 253 A.D. 655, 3 N.Y.S.2d 745, 1938 N.Y. App. Div. LEXIS 8527 (N.Y. Ct. App. 1938).

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