White v. Wielandt — 260 A.D. 871

Majority

p. 871

John K. White, Frederick D. Wood and Samuel J. Titus, as Trustees under a Certain Declaration of Trust Made by Them Dated and Filed July 1, 1938, in the Office of the Clerk of the United States District Court for the Eastern District of New York in Proceedings Entitled “ In the Matter of Nassau-Suffolk Bond and Mortgage Guarantee Company, Debtor, No. 28892,” Respondents, v. Gladys M. Wielandt, Theodore H. Wielandt, Appellants, and Others, Defendants.

The motion is referred to the court that rendered the decision on appeal. Present — Lazansky, P. J., Hagarty, Carswell, Adel and Taylor, JJ. Motion for resettlement of order and for other relief denied. On the court’s own motion the decision of this court handed down June 17, 1940 [ 259 App. Div. 676 ], is hereby amended to read as follows: Order of the County Court of Nassau County modified by (1) striking out the first and second ordering paragraphs and in place thereof inserting the following: “ Ordered that defendants’ motion to dismiss the second, third and fourth causes of action upon the ground that they fail to state causes of action be and it hereby is granted. Ordered that plaintiffs’ motions be and they hereby are granted to the extent hereinafter indicated, and otherwise denied.”; (2) by striking out the fifth and seventh ordering paragraphs; and (3) by striking out the eighth ordering paragraph and in place thereof inserting the following: “ Ordered that the plaintiffs may, if so advised, proceed upon the first cause of action.” As thus modified, the order is affirmed, with twenty dollars costs and disbursements to the appellants. Judgment of the County Court of Nassau County vacated, without costs. Opinion by Johnston, J., amended accordingly. Present — Lazansky, P. J., Hagarty, Johnston, Taylor and Close, JJ. [See 172 Mise. 686.]