Opinion
November 6, 1931.
Appeal from Supreme Court of New York County.
Philip Wittenberg of counsel [ Boudin Wittenberg, attorneys], for the appellants.
Chester Bordeau of counsel [ White Case, attorneys], for the respondent Mortimer B. Bernstein.
Morris Hillquit of counsel [ I. Henry Kutz with him on the brief; Morris Hillquit, attorney for certain respondents; Nathaniel J. Palzer, attorney for International Union Bank (International Madison Bank and Trust Company); Alfonso Bivona, attorney for Italian Labor Centre, Inc.; Zvirin Lippner, attorneys for Samuel C. Rosenthal], for the respondents.
Present — FINCH, P.J., MERRELL, McAVOY, MARTIN and SHERMAN, JJ.
The affidavits submitted by the parties raise a very sharp issue which should not be disposed of on this motion.
We are unable to decide from the record before us which of the affiants have made truthful affidavits. It is quite apparent that some of the affidavits are false. When the case is reached for trial the preliminary questions here involved may be disposed of by the justice presiding, before the trial of the issues in the action. If he is convinced that the action has not been authorized by the plaintiffs and that the attorneys who have appeared had no authority to bring the action, the entire matter may be disposed of by a decision of that issue. If the action was properly brought, the trial justice may then proceed to the trial of the issues involved.
The judgment and order should be reversed, with costs, and the motion denied, with ten dollars costs.
Judgment and order reversed, with costs, and the motion denied, with ten dollars costs.