In re the Intermediate Account of Union Trust Co.

246 A.D. 889 | N.Y. App. Div. | 1936

Order affirmed, with costs. All concur, except Taylor and Thompson, JJ., who dissent and vote for reversal on the law and facts and a new trial in the following memorandum: The first intermediate account dated May 27, 1931, and filed July 29, 1931, the written waivers and the reservations made in them by Mae Merz Barrett, George L. Merz, and Myrtle Merz Maharon with reference to the first intermediate accounting, the decree of the surrogate (dated July 28, 1931) with reference to said first intermediate account, the written agreement of October 20, 1931, executed by the administrator and by all the heirs of Martin Merz and the necessary inferences which — as it seems to us — must be drawn from the testimony show a situation and a relationship among the parties in interest such that the order appealed from should be reversed on the law and facts and the motion granted on the ground that the jury findings were contrary to and against the weight of the evidence. Proving negligence in the administrator and nothing less was the burden assumed by respondent, and that burden was not sustained. It is also our opinion that even assuming that any finding of negligence in appellant was appropriate, it was error (a) to permit the jury to find negligence in appellant for failing to sell securities at any time other than between May 27 and October 20, 1931, and (b) not to require the jury to specify the date in each instance upon which appellant should have made the respective sales at the prices mentioned by the jury in their several answers to questions. (The order denies a motion to set aside findings made by the jury in a proceeding for judicial settlement.) Present — Sears, P. J., Taylor, Edgeomb, Thompson and Lewis, JJ.