Opinion
December 8, 1975
In an action to (1) declare a certain loan null and void and (2) recover the value of the collateral delivered to secure the said loan, plaintiff appeals from an order of the Supreme Court, Orange County, dated July 8, 1974, which (1) marked the action off the calendar unless a substitute testamentary trustee was appointed within 60 days and (2) granted defendant's motion to dismiss the complaint in the event of the failure of such an appointment. Order modified by deleting its decretal provisions and substituting therefor the following: "ordered that plaintiff, Marrin M. DePicabia, is removed as testamentary trustee under the will of Marie M. DePicabia, deceased, by reason of his admitted misconduct in the administration of that trust, and it is further Ordered that the Clerk of the Supreme Court, Orange County, shall give written notice to the Clerk of the Surrogate's Court, Orange County, of the entry of this order, by delivery to him of a certified copy thereof, so that the latter court may take appropriate proceedings for the appointment of a substitute trustee of the above-mentioned trust and for the taking of such other proceedings as that court may deem necessary and proper for the protection and enforcement of the rights and remedies of the beneficiaries of that trust, and it is further Ordered that this action is marked off the calendar of this court and that the substituted trustee, who shall be expeditiously appointed, may move in this court, on notice to defendant, for the restoration of this action to the trial calendar upon such terms as may be proper." As so modified, order affirmed, without costs. The complaint in this action was considered at a pretrial conference jointly with the complaint in a companion action by plaintiff, as trustee, against the Chester National Bank. We have modified the order appealed from in this action for the same reasons as those set forth in our decision in the appeal from the order made in the companion action (see DePicabia v Chester Nat. Bank, 50 A.D.2d 812). Rabin, Acting P.J., Martuscello, Latham, Margett and Munder, JJ., concur.