McKnight v. Bank of New York & Trust Co.

233 A.D. 763 | N.Y. App. Div. | 1931

Order affirmed, with ten doEars costs and disbursements. In this action to set aside a trust deed on account of fraud, the plaintiff seeks, by motion, to compel the trustees to pay to her or to her attorney a counsel fee out of the income of the trust fund, and if the income be insufficient, out of the principal; claiming such payment to be justified under the terms of the trust deed itself. While we are of opinion that the remaindermen are not necessary parties to such an application, the plaintiff is not entitled to the rehef she seeks by this motion, since motions can be resorted to only for the purpose of seeking incidental relief collateral to the main object of the action in which they are made. This is without prejudice to the obtaining of ultimate relief by the plaintiff, if she be entitled to it, in a proper action or special proceeding. Lazansky, P. J., Kapper, Hagarty, Carswell and Davis, JJ., concur.