In re Peters — 296 N.Y. 974

Majority

p. 974

In the Matter of Homer E. Peters et al., Surviving Partners of the Firm of McClung, Peters and Simon, Respondents. John E. Bachmann, as Receiver, Appellant.

Argued February 28, 1947;

decided April 17, 1947.

p. 976

I. Arnold Boss for appellant.

Charles B. Sullivan for respondents.

Orders modified in accordance with the memorandum herein, and, as so modified, affirmed, without costs. The answer interposed by the receiver-appellant pleads a denial of those allegations contained in paragraph 20 of the petition herein which alleged that the sum of $726.83 was expended by the petitioners in the prosecution of the claim of Clemente Construction Co., Inc., against the State of New York. Finding in the record no evidence which supports disbursements by the petitioners in that amount we remit the proceeding in that regard to the Special Term for the purpose of receiving any evidence relevant to the issue of fact thus tendered which may be offered by the petitioners and the receiver-appellant. So far as the orders fix and determine the amount of the attorneys’ lien at $23,481.58, they should be affirmed. This modification is without costs. No opinion.

Concur: Lottghran, Oh. J., Lewis, Conway, Desmond, Teacher, Dye and Fuld, JJ.