In re the Construction of the Will of Brener

Appellant is directed to join Max Katz of New York as respondent in this appeal and to serve on him and file with the Surrogate’s Court, Bronx County, notice of the appeal; to serve upon said party the record on appeal and appellant’s brief; and to serve and file with the Clerk of this court notice of reargument with proof of service thereof on the respondent on or before November 14, 1960. (Surrogate’s Ct. Act, § 289; Smith v. Havens Relief Soc., infra.) Upon appellant’s failure to comply with this order, the appeal shall be dismissed. The appeal is set down for reargument on November 22, 1960, by which date the brief of respondent Max Katz of New York shall be served and filed. The executor respondent urges dismissal of this appeal because the appellant has omitted to serve the notice of appeal upon and to join Max Katz of New York as respondent. Max Katz of New York appeared below pro se and is the appellant’s assignee. This appeal involves the validity of the assignment to Max Katz of New York made by the appellant Max Katz of Toronto. We are of the opinion that Max Katz of New York is a necessary party. It does not appear that appellant’s time to appeal as to Max Katz of New York has expired. (Kilmer v. Hathorn, 78 N. Y. 228; O’Brien v. City of New York, 6 A D 2d 63; Smith v. Havens Relief Fund Soc., 115 App. Div. 185.) Concur — Breitel, J. P., Rabin, Valente, McNally and Eager, JJ.