Opinion
April 14, 1938.
Appeal from Supreme Court of Bronx County.
Clarence P. Goldberg of counsel [ Irving G. Morris and Harold G.P. Tobin with him on the brief; Clarence P. Goldberg, attorney], for the appellants.
Oscar S. Blinn of counsel [ Kelly Blinn, attorneys], for the petitioner, respondent.
Jacob S. Demov, special guardian.
Present — MARTIN, P.J., O'MALLEY, TOWNLEY, GLENNON and UNTERMYER, JJ.
Although the petition and supporting affidavits establish prima facie the incompetency 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 care, and her property all the protection, which the special circumstances require.
The order should be reversed and the motion in all respects denied.
Order unanimously reversed and the motion in all respects denied.