Mosher v. Bank of Palm Beach & Trust Co. — 27 A.D.2d 793

Majority

p. 793

Ethel Mosher, Appellant, v. Bank of Palm Beach and Trust Co. et al., as Executors of Walter C. Mosher, Deceased, Defendants, and Frances D. Mosher, as Ancillary Executrix of Walter C. Mosher, Deceased, Respondent.

Order unanimously modified in accordance with the Memorandum and as modified affirmed, without costs. Memorandum: The trial court correctly determined that the Surrogate Court decree was a bar to plaintiff’s declaratory judgment action, but erroneously dismissed the complaint. It should have granted a declaration in defendants’ favor (Hoffman v. City of Syracuse, 2 N Y 2d 484 , 487; Matter of Mandis v. Gorski, 24 A D 2d 181 , 184). Such a declaration will be incorporated in the order entered hereon. (Appeal from order of Monroe Special Term dismissing complaint.) Present — Williams, P. J., Bastow, Goldman, Del Vecchio and Marsh, JJ.

Cases cited

Hoffman v. City of Syracuse 2 N Y 2d 484 N.Y. 1957-03-08 at 487 p. 793
Mandis v. Gorski 24 A D 2d 181 N.Y. App. Div. 1965-12-09 at 184 p. 793