Opinion
Argued December 3, 1945
Decided January 18, 1946
Appeal from the Supreme Court, Appellate Division, First Department, DINEEN, J.
Joseph M. Hartfield, Thomas Kiernan and James McCarron for New York Trust Company, individually and as trustee, defendant-appellant.
Daniel A. Shirk and Milton A. Goldiner for Henry J. Beilman, as executor of William S. Butler, deceased, individually and as trustee, defendant-appellant.
Irving D. Lipkowitz, William Hughes Lewis and Ambrose V. McCall for plaintiff-respondent.
M. Perry Dawson and Victor D. Werner for Eleanor D. Glavin, defendant-respondent.
Seymour J. Wilner for Joseph Quittner, guardian ad litem for Gail F. Glavin, an infant, and another, defendants-respondents.
Judgment so far as appealed from affirmed, with costs; no opinion.
Concur: LOUGHRAN, Ch. J., CONWAY, DESMOND, DYE and MEDALIE, JJ.; LEWIS, J., dissents from so much of the decision as sustains a surcharge of $13,500, upon the ground that in the circumstances disclosed by the record the remaindermen are estopped to complain of the purchase by the trustee of the second mortgage which is the basis for such surcharge; otherwise, concurs. Taking no part: THACHER, J.