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

Majority

p. 655

In the Matter of the Application for the Appointment of a Committee of the Person and Property of Rachel Wiesenberg, an Alleged Incompetent Person. Charles Wiesenberg, Petitioner, Respondent; Rachel Wiesenberg, Julia Goldberg, George Wiesenberg and Samuel Wiesenberg, Appellants.

First Department,

April 14, 1938.

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.

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

p. 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.