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RICHARD B. PUETTE v. MARTIN F. HICKEY ET AL. (10/28/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT


October 28, 1969

RICHARD B. PUETTE, INDIVIDUALLY AND AS A PENSIONER UNDER THE NMU PENSION TRUST ON BEHALF OF HIMSELF AND IN BEHALF OF ALL OTHER PENSIONERS OF THE NMU PENSION TRUST, SIMILARLY SITUATED, RESPONDENT,
v.
MARTIN F. HICKEY ET AL., INDIVIDUALLY AND AS THE TRUSTEES PRESENTLY ACTING UNDER THE NMU PENSION TRUST, ET AL., APPELLANTS

Concur -- Capozzoli, J. P., McGivern, Markewich, Nunez and Steuer, JJ.

Order entered May 2, 1969, unanimously modified on the law, the facts and in the exercise of discretion to the extent of striking therefrom the provisions directing that notice be given to each person who is a pensioner of this and subsequent applications, and that notice be published in the New York Times; further, the provision relating to the costs of the reference is modified to the extent of directing that the cost of the reference will be jointly borne in the first instance, by both parties, and not exclusively by the trust, and otherwise affirmed, without costs or disbursements. The acceptable elements of the record fail to warrant the imposition on the trust fund of the not inconsiderable costs of mailing notices to all the pensioners, and the expense of newspaper advertising. Further, since it has not yet been determined that the trust fund is liable for petitioner's counsel fees, it is more equitable, at this juncture, to direct that the reference expenses be jointly borne in the first instance equally, by both parties, with the question of taxing such costs by the prevailing party left to the conclusion of the litigation. Settle order on notice.

19691028

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