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KRISTT v. WHELAN

4 A.D.2d 195 (1957)

Milton J. Kristt, Individually and as a Representative of All Beneficiaries under a Deed of Trust, Dated December 28, 1943, Respondent-Appellant, v. John J. Whelan et al., as Trustees under a Deed of Trust, Dated December 28, 1943, Appellants-Respondents, and Andrew J. Haire, Jr., et al., as Executors of Andrew J. Haire, Deceased, et al., Respondents

Appellate Division of the Supreme Court of the State of New York, First Department.

June 25, 1957.

Attorney(s) appearing for the Case

Maurice Fixel of counsel (Kanton, Fixel & Rose, attorneys), for respondent-appellant.

Francis S. Bensel of counsel (W. Frederick Knecht with him on the brief; Kelley, Drye, Newhall & Maginnes, attorneys), for appellants-respondents and respondents.

BREITEL, J. P., FRANK and VALENTE, JJ., concur with McNALLY, J.; RABIN, J., dissents in part and votes to modify in opinion.

McNALLY, J.

Defendants appeal from that part of the judgment which awards a recovery on the first cause of action and plaintiff appeals from the part of the judgment which dismisses the third to sixth causes of action, inclusive. The second cause of action was dismissed voluntarily with prejudice. The first cause of action is for the recovery of a sum alleged to be due the plaintiff under the trust agreement herein...

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