Opinion
Argued October 3, 1951
Decided December 6, 1951
Appeal from the Supreme Court, Appellate Division, First Department, DELEHANTY, S.
Orison S. Marden, Alfred H. Townley and Maurice E. McLoughlin for Bankers Trust Company, appellant and respondent.
Murray C. Bernays, Howard E. Reinheimer and Edwin A. Falk for Willard H. Carr and others, respondents and appellants.
James N. Vaughan, special guardian for Charles J. Lang, III, and others, respondents and appellants.
Appeals and cross appeals from the decree of the Surrogate dismissed upon the ground that the appealable paper is the order of the Appellate Division. Order of Appellate Division modified by reversing so much thereof as disallowed the surcharge made in connection with the leasing in 1937 of the Hotel Albert, on the ground that the weight of the evidence is in accord with the finding of the Surrogate of a breach of trust in connection therewith. To this extent a proportional reinstatement of the surcharge for counsel fees and expenses is allowed. As so modified, order of Appellate Division affirmed, without costs. No opinion.
Concur: LOUGHRAN, Ch. J., LEWIS, CONWAY, DYE and FROESSEL, JJ. Dissenting: DESMOND and FULD, JJ., who vote to affirm the order of the Appellate Division in its entirety.