
    In the Matter of Stephen Juba, Petitioner, v. Department of State of the State of New York et al., Respondents.—
   Sweeney, J.

Herlihy, P. J. (dissenting).

As noted by Special Term, the notice of hearing charged a violation of article 12-A of the Real Property Law and the complaint annexed thereto specified fully the facts which were the subject of the hearing and determination of the respondent. The failure of the respondent to specifically include a charge of incompetence does not preclude such a determination. The concept of due process is not violated by virtue of the failure of the respondent to specify in advance that it might find ineompetency. The ease of Matter of Wignall v. Fletcher (303 N. Y. 435) involved a deviation from the subject matter of the proceeding and is inapposite. The record supports the determination of ineompetency. The determination should be confirmed.  