Hanover Bank v. Cole

7 A.D.2d 713, 1958 N.Y. App. Div. LEXIS 3927

Opinion

The submission under sections 546 and 547 of the Civil Practice Act is unanimously dismissed, on the law and in the exercise of discretion, without costs. The remedy afforded by these sections does not dispense with the fundamental requirement of a justiciable controversy (167 Greenwich Realty Co. v. Kehoe, 3 A D 2d 659; Johnson v. Flynn, 248 App. Div. 649). An examination of the stipulation and the briefs submitted reveals that all parties seek the identical relief. Moreover, the parties do not contend that there is a difficult or unusual legal point to be decided or that the trustee is hesitant to act. (Of. 3 J essup-Redfield, Surrogate’s Law and Practice [rev. ed.], § 2889; 90 C. J. S., Trusts, § 261, subd. e, p. 311 et seq.) Concur •—Botein, P. J., Breitel, Rabin, Valente and McNally, JJ.