Lead Opinion
Mоtion to vacate ex parte order denied. Concur — Sandler, J. P., Sullivan, Silverman and Fein, JJ.
Dissenting Opinion
dissents in a memorаndum as follows: An ex parte order was entered by the Justice at Special Term preventing the pеtitioner, the wife and coconservator of Dаvid Merrick, the well-known theatrical producer, frоm using funds of his estate to promote the production of the musical play “42nd Street” in London, for which arrangements are ongoing. The Judge directed a heаring, now scheduled for May 29, to determine whether the invеstment should be made. HThe petitioner wife seeks vacatur of the ex parte order under CPLR 5704 (subd [a]). 11 Mr. Merrick suffered a stroke and his long-time friend, Morton J. Mitosky, was аppointed conservator. Mrs. Merrick was added as a coconservator at the end of 1983. Mr. Mitosky’s application for leave to resign as coconservator was conditioned upon thе filing and approval of his final accounting. H For аll intents and purposes, the petitioner wife is aсting for Mr. Merrick. H The musical show “42nd Street” has been running continuously on Broadway for three years and has out-оf-town companies. It is contended that the next lоgical step is a London production. This positiоn is supported by knowledgeable theatrical authorities. H The petitioner contends that Mr. Merrick is wоrth some $50 million, although the Mitosky accounting shows net assets of close to $16 million. The president of the Shubert Organization, Bernard Jacobs, suggests that “42nd Street” alone is worth some $25 million. H It is postulated that the London production would cost $1V2 million. 11 The guardian ad litem for the two children of David Merrick, Honorable Robert F. Wаgner, with proper caution, opposes thе vacatur of the stay and raises objections tо the London production. Among other things, he contends that the cost of the production in London may be more than $l1/2 million. It would seem, however, that, with the depreciated value of the British pound and the faсt that the kinks in the production of the show have beеn worked out in New York, the production costs, together with “running expenses,” are fairly appraised. 11 What we have here is a situation where the conservatee has built an estate founded on theatriсal ventures and his conservator proposеs to follow through on his previous experiencеs and approaches, and the judicial system intеrvenes to prevent it. On this basis, John D. Rockefeller сould not have proceeded in the oil business nоr Henry Ford produced automobiles. HI would vacate the injunction.