Opinion
Not published with other decisions of November 26, 1979, 72 A.D.2d 801. [Rep.
Motion by respondents to resettle the order of this court, dated August 6, 1979, so as to make the determination of the court on the appeal from a decree of the Supreme Court, Suffolk County, dated May 8, 1978, final. Cross motion by appellant for reargument of so much of the appeal as sustained the lower court's finding of a creation of a trust situation in favor of the respondents, or in the alternative, for leave to appeal to the Court of Appeals. Upon the stipulation of the attorneys for the parties, as set forth in the affidavit of Samuel S. Tripp, attorney for the respondents, dated September 13, 1979, this court's decision, dated August 6, 1979, is amended (1) by striking its second (decretal) paragraph and by substituting therefor the following: "Decree modified (a) by striking from the first decretal paragraph thereof the words `as Trustee' and by adding to said paragraph after the words `interest thereon' the following: `the sum of $331,857.95 plus accumulated interest thereon to be held by it as Trustee; and the remainder to be held outright and forever in its own right and for its own use.' (b) by striking from the second decretal paragraph thereof the figure `$1,000,000' and by substituting therefor the figure `$331,857.95'. As so modified, decree insofar as appealed from, affirmed, without costs or disbursements" (2) by striking the last paragraph of the decision, which appears on page 3. Order, dated August 6, 1979, entered on said decision amended accordingly. Cross motion by appellant insofar as it is for reargument denied; but cross motion insofar as it is for leave to appeal to the Court of Appeals from so much of the decree as was affirmed, granted. Questions of law have arisen, which in our opinion, ought to be reviewed by the Court of Appeals. Mollen, P.J., Hopkins, O'Connor and Mangano, JJ., concur.