SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
January 20, 1969
MARIO MENDEZ, RESPONDENT-APPELLANT,
GREGORY MELIKIAN, AS EXECUTOR OF SARKIS BAKTIMERIAN, DECEASED, APPELLANT-RESPONDENT
Cross appeals from stated portions of a judgment of the Supreme Court, Queens County, dated January 12, 1968.
Rabin, Acting P. J., Hopkins, Benjamin and Munder, JJ., concur; Martuscello, J., dissents.
Judgment affirmed insofar as appealed from, without costs.
Martuscello, J., dissents and votes to modify the judgment by striking therefrom the provision which awards a counsel fee to defendant's attorney, with the following memorandum:
The award of a counsel fee to defendant's attorney was improper. There is nothing in the record to indicate that defendant requested such an allowance; nor is there otherwise a legal basis therefor.
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