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Furniss v. Cruikshank

231 N.Y. 550 Court N.Y. Decision date 1921-05-03 English

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p. 550
William P. Furniss et al., Respondents, v. Warren Cruikshank, as Substituted Trustee under the Will of William P. Furniss, Deceased, et al., Respondents, and Lucius H. Beers et al., as Executors of Margaret E. Zimmerman, Deceased, Appellants.
(Submitted April 25, 1921;
decided May 3, 1921.)

Headnote

Motion to amend remittitur. (See 230 N..Y. 495 .)

We deny the motion for a re-argument and also the motion to amend the remittitur herein in so far as it affects the question of costs. There should be an amendment, howeyer, in one respect.

The Appellate Division charged $36,890.04 to income. This sum was reached as the balance between $40,760.90, the amount paid for taxes and other expenses on the Bloomingdale lots, and $3,870.86,- the amount of rents received therefrom. Of this sum of $40,760.90, $1,987.75 was paid before December 18, 1875, and $38,773.15 thereafter. Of the rents $259.76 was received before and $3,611.10 after that date. The balance between $1,987.75 and $259.76, or $1,727.99, should be charged to income; that between $38,773.15 and $3,611.10, or $35,162.05,' to principal.

The remittitur provided that the judgment appealed from be modified in accordance with the opinion and as so modified affirmed. The reference was to the last paragraph of such opinion which stated the final result reached by us. Subdivision (b) of this paragraph should be and is amended to read as follows, “ (b) by affirming that portion of the judgment of the Appellate Division

p. 551
which provides that the taxes, water rates, marshal’s fees and legal expenses in connection with said lots were properly chargeable against the income of. the trust estate to the extent of $1,727.99 and by reversing the same and affirming the judgment of the Special Term with regard to such items to the extent of $35,162.05, and as so modified the judgment appealed from should be affirmed, with costs in this court and in the Appellate Division to the appellants,” and1 the remittitur should be and is amended accordingly.

All concur.

Ordered accordingly.

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