Opinion
May, 1930.
Appeal from Supreme Court, New York County.
Present — Finch, McAvoy, Martin and O'Malley, JJ. Judgment modified as directed in opinion and as so modified affirmed, without costs. Settle order on notice, reversing findings inconsistent with this determination and containing new findings of facts proved upon the trial as are necessary to sustain the judgment hereby awarded.
Disposition of the issues herein was correctly made, save in one respect. The accounting to be had may result in the securing of further assets pursuant to the deed of trust of January 15, 1924. Whether the discretion to be exercised thereunder remains in the present trustee or, as a result of the accounting, becomes vested in the court or its appointee, it is possible, whatever the probabilities, that the appellants Wolff, Cummings and Wynne may be allocated additional shares in the distribution. The judgment appealed from, therefore, will be modified by reversing so much thereof as decrees that the defendants, appellants, Wolff, Cummings and Wynne have no further interest in the trust fund and that the plaintiff is under no duty to account to them. As so modified, the judgment should be affirmed, without costs.