In the Matter of Goldie Fischman, an Alleged Incompetent, Appellant. Yetta Rowan, Appellant; Eva Berg et al., Respondents, 22 A.D.2d 913

In a proceeding to declare Goldie Fischman an incompetent and to appoint a committee for her estate, the alleged incompetent person and Yetta Rowan, one of her daughters, appeal: (1) from an order of the Supreme Court, Kings County, dated June 16, 1964, which directed a jury trial of the issues; and (2) from an order of said court, dated June 29, 1964, which appointed a receiver of the alleged incompetent’s property and enjoined its transfer. Appeal dismissed, with costs to the special guardian payable out of the estate of the alleged incompetent, and without costs to any of the other parties.

The court has been advised by the appellants’ counsel that the alleged incompetent had died a few days after the argument of this appeal. Although this court has the power to decide an appeal nunc pro tunc where the death of a party intervenes between the submission or argument of the appeal and its disposition, we do not deem it provident to exercise that power in this case (see Rattray v. Raynor, 10 N Y 2d 494). An incompetency proceeding is sui generis.

Here the issue of incompeteney was never adjudicated; and we will not perpetuate the matter, even as to an appeal from intermediate orders, after the death of the alleged incompetent (see Matter of Frank, 283 N. Y. 106). In view of the alleged incompetent’s death, .the issues presented, dealing essentially with the propriety of the directive for a jury trial on the question of the alleged incompetency and with the propriety of the appointment of a temporary receiver, are moot and of no consequence. Beldoek, P. J., Ughetta, Kleinfeld, Christ and Brennan, JJ., concur.