Sobel v. Bess , 43 A.D.2d 733 ( 1973 )

Appeal by plaintiff from an order-judgment of the Supreme Court, Suffolk County, dated July 26, 1973, which granted defendants’ motion for partial summary judgment dismissing portions of certain objections to the final account of defendant Bess. The appeal brings up for review a prior order of the same court dated July 13, 1973> which also granted the same motion. Order-judgment and said prior order reversed, with $20 costs and disbursements, and defendants’ motion denied. The case is hereby referred to Mr. Justice Glickman, with the direction that, in view of the inordinate length of time this controversy has been extant, the ease be promptly tried and brought to a speedy conclusion. The basis for the Special Term’s decision was that the issues raised by the subject portions of the objections were previously determined and disposed of in an interlocutory judgment dated February 9, 1966. It is our opinion that that judgment contains two provisions which are inconsistent with each other and cause considerable confusion in deciding the issues which are determinative of this appeal. Specifically, a provision of the judgment declares that the defendant Bess is the beneficial owner of all shares of common stock of the corporate defendant. The next provision declares that he should hold that stock as trustee and receiver of Great River Country Club Associates. We find these provisions irreconcilable. However, if Bess is indeed the trustee and receiver of Great River and is holding this stock as trust and receivership assets on behalf of Great River, then plaintiff, as the sole surviving general partner of Great River, ought to be entitled to an accounting of this stock, as well as a listing from the trustee of the beneficiaries of the trust. Upon the trial of the objections, the above-mentioned confusion should be clarified by a formal statement of findings of fact and conclusions of law. Hopkins, Acting P. J., Latham, Gulotta and Christ, JJ., concur.