In re the Estate of Elwyn , 9 Misc. 2d 57 ( 1957 )

Charles H. Gaffney, S.

Petitioner, Marion Elwyn, seeks an order that Martin F. Comean as executor of the joint last will and testament of Sherman it. Elwyn and Cornelia Elwyn, dated November 15, 1948, and as executor of the last will and testament of Sherman B. Elwyn, dated February 29, 1952, cease and desist from prosecuting an appeal from a judgment of the Supreme Court filed in the Ulster County Clerk’s office on August 15, 1957, or in the alternative that an order be made directing that in the event said judgment is affirmed that the cost of such appeal as well as attorneys ’ fees in connection with the appeal be borne solely by the said Martin F. Comeau, individually, and/or by the residuary legatees, other than your petitioner, Marion D. Elwyn.

Subsequent to the hearing of this application an authorization of attorney to appear for persons not served with citation signed by Katherine B. Elwyn, Helen E. Hawk and Katherine B. Elwyn, as administratrix of the estate of Harold Elwyn, deceased, authorizing Joseph T. Bussell, Esq., 8 Lafayette Place, Poughkeepsie, New York, to appear for them in this proceeding was filed in this court, along with a notice of appearance by Joseph T. Bussell, Esq., attorney for Katherine B. Elwyn, Helen E. Hawk and Katherine B. Elwyn, as administratrix of the estate of Harold Elwyn, deceased.

In view of the foregoing the relief sought by petitioner is premature at this time and is, therefore, denied, without prejudice to renew said application subsequent to the appeal herein if the facts and circumstances warrant same at that time.

Submit order.