Majority
p. 37Irving Trust Company (Formerly American Exchange Irving Trust Company), as Trustee under the Trust Indenture Dated February 17, 1928, Executed by Alice Maud Lombard and Remaindermen, Respondent, v. Alice Maud Lombard, Defendant, Impleaded with William Bradford Atwater and Others, Appellants. First Department, November 17, 1939.
p. 38
Thomas Allen, 3d, of counsel [Orlando P. Metcalf with him on the brief; Metcalf, Giles & Allen, attorneys], for the appellant Alice Lorna Atwater Allen.
John F. Keating, guardian ad litem of all infant appellants.
Allen R. Memhard [Henry A. Jones with him on the brief], for the appellants William Bradford Atwater and others.
Raymond M. White of counsel [Murray Sargent, Jr., with him on the brief; Gifford, Woody, Carter & Hays, attorneys], for the respondent.
An accounting by the trustee should not have been ordered until an interlocutory judgment providing for such accounting had been entered after trial of the issues or upon motion on the pleadings if no issue be raised. (Post v. Van Siclen, 132 App. Div. 796 ; Starr v. Selleck, 138 id. 277; Gibson v. Widman, 106 id. 388; Schaffer v. City Bank Farmers Trust Co., 244 id. 463.)
The order should be reversed, with twenty dollars costs and disbursements, and the motion denied.
Present — Martin, P. J., Townley, Untermyer, Cohn and Callahan, JJ.
Order unanimously reversed, with twenty dollars costs and disbursements, and the motion denied.