Meyer v. Title Guarantee & Trust Co.

228 A.D. 641

Opinion

The decision of tMs court handed down on November 22, 1929,* hereby amended to read as follows: Order denying motion to vacate and set aside judgment and for leave to intervene reversed upon the law and the facts, without costs, and motion granted to the extent of vacating and setting aside judgment dated May 10, 1929, and granting leave to Emma Meyer, as a beneficiary of the alleged agreement but not as a residuary legatee to intervene as a party plaintiff, and directing that Eva C..Meyer, the widow, be made a party defendant, without costs. Whether or not these parties should be permitted to intervene rested in discretion (Brennan v. Hall, 131 N. Y. 160) which might be exercised either after or before execution of the judgment. (Matter of Ayrault, 81 Hun, 107; affd., 146 N. Y. 389.) While this court is reluctant to interfere with the Special Term in the exercise of discretion, it is of opinion that the judgment should be vacated and leave to intervene granted. Rich, Seeger and Scudder, JJ., concur; Lazansky, P. J., and Young, J., dissent.