I would affirm. It is obvious that Special Term gives more credence to the decisions of this court than this court does itself. In Rau v Rau (78 AD2d 617), this court determined that a petition brought by the wife for the appointment of a conservator of the property of her husband (the plaintiff in the case at bar against the defendant doctor) could be withdrawn where only the husband and wife were involved, and they had agreed upon a stipulation of discontinuance. In that proceeding, the defendant doctor, at the request of the wife, supplied an affidavit to support her petition. Obviously, an issue that will be before the court in the pending action will be the question of whether there was a valid basis for the physician’s conclusions. Accordingly, it is incongruous to strike the affirmative defense of lack of legal capacity, which is a real question in the case, and the inconsistency is compounded when the court suggests the appointment of a committee when we have heretofore accepted the fact that the husband and wife together can stipulate to avoid such a result. Far better would it be simply to allow the affirmative defense to stand and let the matter be tried.