Gabay v. Rosenberg

Full title: LEDA GABAY, Appellant, v. ESTHER ROSENBERG, as Executrix of SAUL…

Court: Court of Appeals of the State of New York

Date published: May 18, 1967

19 N.Y.2d 899 (N.Y. 1967)

281 N.Y.S.2d 91

227 N.E.2d 889

Opinion

Argued April 6, 1967

Decided May 18, 1967

Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, LEONARD J. SUPPLE, J.

Sydney A. Fried for appellant.

Max Wechsler and Albert L. Solodar for respondent.

Order reversed, without costs. In our opinion, the agreed statement of facts is sufficient. Since the Appellate Division, taking a different view, has declined to consider or pass upon fact questions, the case is remitted to that court for a determination upon the merits. (CPLR 5613; see, e.g., Matter of Brenner v. Great Cove Realty Co., 6 N.Y.2d 435, 444.)

Concur: Chief Judge FULD and Judges BURKE, BERGAN and KEATING. Judges VAN VOORHIS, SCILEPPI and BREITEL dissent and vote to affirm.