Opinion
Submitted November 20, 1972
Decided December 6, 1972
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, MORRIS E. SPECTOR, J.
Joel S. Stern and John R. Berkley for motion.
Paul M. Brown, Gary P. Rosenthal and John L. McCormick opposed.
Motion denied, with leave to renew upon argument of the appeal. Appellants Petrie and Looby were not adversely affected by the judgment of the trial court because of the out-of-court settlement agreement and situation in the California probate proceeding, and, therefore, arguably, could not have appealed. They were substantially affected, however, by the Appellate Division modification. Under these circumstances, it would seem that they should not be barred from appealing to this court by their failure to appeal below (cf. Matter of Zaiac, 279 N.Y. 545, 554). That appellants may be chargeable with abandonment in the courts below of their challenge to the validity of the trust would affect merely the scope of the review available on the appeal to this court, rather than their right to take the appeal.