Majority
p. 715In the Matter of the Accounting of Bankers Trust Company, as Successor and Sole Surviving Trustee under the Will of Albert S. Rosenbaum, Deceased, Appellant and Respondent. Willard H. Carr et al., Respondents and Appellants; Bankers Trust Company, Individually, Appellant and Respondent. Argued October 3, 1951; decided December 6, 1951.
p. 716
Orison S. Marden, Alfred II. Townley and Maurice E. McLoughlin for Bankers Trust Company, appellant and respondent.
Murray C. Bernays, Howard E. Reinheimer and Edwin A. Falk for Willard H. Carr and others, respondents and appellants.
James N. Vaughan, special guardian for Charles J. Lang, III, and others, respondents and appellants.
Appeals and cross appeals from the decree of the Surrogate dismissed upon the ground that the appealable paper is the order of the Appellate Division. Order of Appellate Division
p. 717
modified by reversing so much thereof as disallowed the surcharge made in connection with the leasing in 1937 of the Hotel Albert, on the ground that the weight of the evidence is in accord with the finding of the Surrogate of a breach of trust in connection therewith. To this extent a proportional reinstatement of the surcharge for counsel fees and expenses is allowed. As so modified, order of Appellate Division affirmed, without costs. No opinion.
Concur: Loughran, Ch. J., Lewis, Conway, Dye and Froessel, JJ. Dissenting: Desmond and Fuld, JJ., who vote to affirm the order of the Appellate Division in its entirety.