Opinion
June, 1918.
The parties herein have submitted a case upon an agreed statement of facts under sections 1279-1281 of the Code of Civil Procedure. The plaintiff is executor and trustee under the will of Adela C.B. Sweeting. The beneficiaries of certain trusts contained in the will are not parties to this action. The determination of the question submitted would affect the title to real estate. Such a determination, however, would not foreclose the said beneficiaries, as they are not parties. For that reason this court cannot determine the controversy. The statement of facts does not show what property testator left as we think it should. ( Kondolf v. Britton, 160 App. Div. 381.) The action should be dismissed, without costs. All concurred. Action upon the submission dismissed, without costs.