President & Directors of Manhattan Co. v. Janowitz

260 A.D. 954 | N.Y. App. Div. | 1940

On the court’s own motion, and the defendant-appellant Emma S. Janowitz having conceded on the argument that if the court should determine Article “ Third ” of the will of Julius Janowitz to be invalid, then the other issues raised by her other defenses and counterclaims become academic upon this appeal and need not be considered, the decision of this court handed down July 2, 1940 [ante, pp. 174-180], is amended to read as follows; Interlocutory decree modified (1) by striking from the first decretal paragraph the words “ except as hereinafter provided with respect to the fourth supplemental trust agreement, dated November 27, 1935; and; ” (2) by striking out the third, fourth, sixth and seventh decretal paragraphs; (3) by striking from the fifth decretal paragraph the word “ tangible; ” (4) by striking from the eighth decretal paragraph the words “ each of the four ” and substituting in lieu thereof the words “ the first, second and fourth; ” and (5) by adding the following paragraph: “ ORDERED, ADJUDGED AND DECREED that Article Third of the will of Julius Janowitz, deceased, is invalid, unlawful and ineffective to transfer to the plaintiff and its co-trustee all real and personal property described in Article Third.” As thus modified, the interlocutory decree is affirmed, with costs to appellant-respondent Emma S. Janowitz against the plaintiff-respondent. Opinion by Johnston, J. Lazansky, P. J., Hagarty and Carswell, JJ., concur; Close, J., dissents, with memorandum. Opinion by Johnston, J., amended accordingly. Present — Lazansky, P. J., Hagarty, Carswell, Johnston and Close, JJ. Order signed.