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In the Matter of the Estate of Abraham Fishkind, Julius Fishkind, as of Abraham Fishkind, Respondent Samuel Fishkind, Interveners, Respondents Jack S. Parker,. Appellants In the Matter of the Estate of Abraham Fishkind, Julius Fishkind, as of Abraham Fishkind, Respondent Samuel Fishkind, Interveners, Respondents Jack S. Parker
On reargument, the decision of this court handed down March 3,1947 (271 App, Div. 1013), which reads “ Orders reversed on the law, with one bill of $20 costs and disbursements to appellants, payable out of the estate, and the motions denied, without costs. The Surrogate correctly rejected appellants’ contention that the provisions of rule 113 of the Rules of Civil Practice could under no circumstances be applied to these proceedings. (Surrogate’s Ct. Act, § 316; Rules Civ. Prae., rule 3; see, also, People ex rel.
Lewis v. Fowler, 229 N. Y. 84, 87.) Summary judgment should not have been granted, however, since triable issues of fact were presented. (Curry v. Mackenzie, 239 N. Y. 267.) Issues were raised not only as to whether the decedent intended to give the corporate stock to appellants and as to whether such stock was ever actually issued, but also as to whether the gift was completed, by symbolical delivery or otherwise.
(See 99 A. L. R. 1077 and 152 A. L. R. 427, and the cases cited therein.) ” is adhered to, without further costs. Lewis, P. J., Hagarty, Carswell, Adel and Nolan, JJ., concur. [See ante, p. 785.]