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Dana L. Jewell, as Committee, etc., of James D. Kelsey, an Incompetent v. Exchange National Bank of Olean, New York, and Others
Order affirmed, with ten dollars costs and disbursements. Memorandum: Appellant is correct in his contention that he did not waive a jury trial, either by the form of action which he brought or by delay in demanding a jury trial; but we hold that he is not entitled to a jury trial as a matter of right (Wurster v. Armfield, 98 App. Div. 298; Matter of Blewitt, 138 N. Y. 148), and that the Special Term did not abuse its discretion in refusing a jury trial. All concur.
(The order denies a motion for a trial by jury in an action to set aside a deed or instrument of trust made by the incompetent about five years prior to his adjudication as an incompetent.) Present — Crosby, P. J., Cunningham, Taylor, Harris and McCurn, JJ.