In re Affleck — 127 N.Y.S. 1109

Majority

p. 1109

In re AFFLECK et al.

(Supreme Court, Appellate Division, Second Department.

February 17, 1911.)

Headnote

Appeal from Su/rrogate’s Court, Westchester County. Proceedings for the judicial settlement of the account of Lizzie D. Affleck and another, as trustees of James Affleck, deceased, and of the account of James G. Affleck, as sole acting trustee. From an order denying an application to open a decree of the Surrogate’s Court, the party aggrieved appeals.

Reversed.

E. Dudley Barlow, for appellant. Michel ICirtland, for respondent.

We are of opinion that in furtherance of justice the decree herein of the Surrogate’s Court of Westchester county should be vacated, in order that the appellant may litigate properly, with an appropriate right of review on appeal, the question as to whether'the stock certificates, which are the point of controversy, may be determined to be either principal or income as the law and facts may require. The form in which the account was rendered gave him no light on this subject. Nothing happened between the filing of the account and the entry of the decree which in all fairness should preclude him now from a judicial consideration of the merits of his claim. The order denying the motion to vacate the decree and reopen the accounting proceedings should be reversed, and the motion granted, without costs to either party.