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ERBE v. LINCOLN ROCHESTER TRUST

13 A.D.2d 211 (1961)

Gustav Erbe, Jr., Individually and as Executor and Trustee under The Will of Gustav Erbe, Deceased, et al., Appellants, v. Lincoln Rochester Trust Company, Individually and as Executor and Trustee under The Will of Gustav Erbe, Deceased, Respondent, et al., Defendants Gustav Erbe, Jr., Individually and as Executor and Trustee under The Will of Gustav Erbe, Deceased, et al., Appellants, v. Lincoln Rochester Trust Co., Individually and as Executor and Trustee under The Will of Gustav Erbe, Deceased, Defendant; Arloa B. L. Baker et al., as Executors of Thomas R. Baker, Deceased, et al., Respondents

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

May 19, 1961.

Attorney(s) appearing for the Case

Harold G. Hutchens (Matthew J. Shevlin of counsel), for appellants.

Nixon, Hargrave, Devans & Dey (William H. Morris and Frederick W. McNabb, Jr., of counsel), for Lincoln Rochester Trust Company, respondent.

Wallace J. Wolf, Jr., for Wallace J. Wolf and others, respondents.

Present — WILLIAMS, P. J., BASTOW, GOLDMAN, HALPERN and McCLUSKY, JJ.

BASTOW, J.

The supplemental complaint in this action has been dismissed upon the ground that it pleads a cause of action for breach of fiduciary duty that is barred by the Statute of Limitations (Civ. Prac. Act, § 53). The amended complaint has been heretofore passed upon (3 N.Y.2d 321). Therein it was held (p. 325) that "despite the allegations of fiduciary relationship...

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