Matter of Edwards

Full title: In the Matter of the Accounting of CAROLINE W. EDWARDS et al., as…

Court: Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Dec 29, 1948

274 App. Div. 1022 (N.Y. App. Div. 1948)

Opinion

December 29, 1948.

Present — Taylor, P.J., McCurn, Larkin, Vaughan and Kimball, JJ. [ 194 Misc. 557.]

Decree as resettled, so far as appealed from, affirmed, without costs of this appeal to any party. (See Matter of Adler, N YL.J., June 10, 1936, p. 2965, col. 4; Matter of Carrington, N YL.J., April 13, 1944, p. 1435, col. 7; Matter of Mishkind, N YL.J., Jan. 27, 1941, p. 413, col. 6.)

All concur, except Larkin, J., who dissents and votes for reversal and denial of the motion for summary judgment and remission of the matter to the Surrogate for further consideration in the following memorandum:

On this record it cannot be held as a matter of law that the prior decrees are res judicata as to the right of the appellants-respondents to further disbursing commissions nor that they had waived such right. (The portion of the resettled decree appealed from denies payments of certain commissions; denies petitioners' motions under rules 103 and 109; and dismisses the amended petition except as decreed.)