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MATTER ROSALIND GENTILE ET AL. v. NATHAN BRESLAUER (10/31/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT


October 31, 1968

IN THE MATTER OF ROSALIND GENTILE ET AL., RESPONDENTS,
v.
NATHAN BRESLAUER, APPELLANT

Concur -- Eager, J. P., Steuer, Capozzoli, Tilzer and McGivern, JJ.

No opinion. Judgment unanimously modified, on the law, on the facts and in the exercise of discretion, to strike the third, fourth and fifth decretal paragraphs directing the return and delivery over by respondent-appellant of the mutual fund certificates, on condition, however, that the respondent-appellant within 10 days after entry of order hereon may interpose an answer to the petition herein; said judgment is otherwise affirmed, with $50 costs and disbursements to petitioners-respondents; and in default of service of answer as herein provided for, the said judgment is in all respects unanimously affirmed with $50 costs and disbursements to petitioners-respondents. The proceeding was properly instituted and the petition is sufficient (see Judiciary Law, ยง 475) but we are unable on the record here to determine the merits of the respondent-appellant's contention that he possesses an attorney's lien upon the certificates. It is true that he defaulted in answering as directed by order entered November 30, 1967, but we conclude that on denial of his motion to dismiss the petition, he should have been permitted to interpose an answer to the petition. (See CPLR 404, subd. [a].) Under the circumstances, however, we direct that he shall pay the costs and disbursements of the appeal.

Disposition

Order entered November 30, 1967, unanimously affirmed, with $50 costs and disbursements to the respondents.

19681031

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