Burrows v. Scherer

228 A.D. 673

Opinion

Per Curiam.

• We agree with the appellant’s contention that the more serious charges made against the trustee have been determined in his favor in prior litigation. There does remain undetermined, however, the plaintiffs’ contention regarding the distribution of the $39,000 item and the general allegations of refusal to co-operate. While on their faces these seem inconsequential, we must nevertheless draw every inference in favor of the complaint which is under attack, leaving it to the trial justice to determine the issue. For that reason only, the orders appealed from will be affirmed, with ten dollars costs to the "respondent, with leave to defendant to answer on payment of said costs. Present — Dowling, P. J., Merrell, Martin, O’Malley and Proskauer, JJ. Orders affirmed, with ten dollars costs and disbursements, with leave to defendant to answer within twenty days from service of order upon payment of said' costs.