Opinion
April, 1927.
Order denying motion for summary judgment affirmed, with ten dollars costs and disbursements. If the alleged incompetent is no longer suffering from incompetency, and was not suffering from incompetency at the time he is alleged to have made the purchase in question, such fact may be shown in support of the equitable defense interposed, because it would have been the duty of the plaintiff to proceed under section 1382 of the Civil Practice Act for a discharge and the consequent removal of the alleged incompetent's disability. There are other matters alleged in the answer which require this case to be tried. The conclusive presumption of invalidity of contract made by one adjudged to be an incompetent does not obtain when it is proved that the incompetent is no longer such and that he and his committee have committed a fraud in the carrying out of the transaction. Kelly, P.J., Young, Kapper, Lazansky and Hagarty, JJ., concur.