Opinion
Argued January 9, 1958
Decided April 3, 1958
Appeal from the Appellate Division of the Supreme Court in the second judicial department, JAMES N. GEHRIG, Acting S.
Paxton Blair, Louis Freedman and Joseph F. Carlino for appellants in the second above-entitled proceeding.
Monroe J. Cahn for Herbert S. Greenberg and another, respondents, in support of appellants, in the second above-entitled proceeding.
James G. Blake for appellant in the first above-entitled proceeding.
Jay Leo Rothschild for Morris Braloff, respondent in each proceeding.
Jay Leo Rothschild and Joseph Trachtman for Sandra B. Borgenicht and another, respondents in the second above-entitled proceeding.
Monroe J. Cahn and Herbert S. Greenberg, in person, for Herbert S. Greenberg and another, respondents in the first above-entitled proceeding.
Henry Root Stern, Jr., special guardian for Denise R. Rubin and others, infants, respondent in each proceeding. Louis J. Lefkowitz, Attorney-General ( Kenneth D. Shearer and Samuel A. Hirshowitz of counsel), in his statutory capacity under section 71 of the Executive Law, to uphold the constitutionality of the Surrogate's Court Act (§ 8, subd. 5).
Orders affirmed, with costs and disbursements in the accounting proceeding to Herbert S. Greenberg and Maxwell Shmerler, executors, and to the special guardian, payable out of the estate, said disbursements to include such part of the executors' disbursements as was incurred in printing the consolidated record on appeal to the Court of Appeals and their brief in the accounting proceeding and the special guardian's brief; and with costs and disbursements in the removal proceeding to Morris Braloff, payable out of the estate, said disbursements to include such part of his disbursements as was incurred in printing the consolidated record on appeal to the Court of Appeals and his brief in the removal proceeding. No opinion.
Concur: Chief Judge CONWAY and Judges DESMOND, FROESSEL, VAN VOORHIS and BURKE. Judges DYE and FULD dissent in the removal proceeding only, upon the ground that the facts adduced required the removal of the executor Morris Braloff.