Chemical Bank & Trust Company v. Ott

248 A.D. 406, 289 N.Y.S. 228, 1936 N.Y. App. Div. LEXIS 6161

Opinions

Glennon, J.

We are in accord with the views expressed by Mr. Justice Dore, except as to the formula for calculating damages.

In our opinion, the amount of the surcharge should be based solely on the loss to the estate, consisting of the difference between the price finally received and the amount that would have been realized if the trustee had performed its duty at the expiration of the eighteen months’ period, which commenced at the date of the death of the settlor. The judgment should be modified as thus indicated.

• In order to avoid the necessity of remitting the case to the referee for the purpose of fixing damages, counsel may submit on notice the actual figures with calculations of the loss, so that it may be reflected in the judgment to be entered.

Martin, P. J., and Untermyer, J., concur; Dore and Cohn, JJ., dissent in part.