The New York Life Insurance and Trust Company, as Trustee of Francis W. Lasak, Deceased, Appellant, v. Ophelia J. Cuthbert et al. and Antoinette Lucinda Schermerhorn, Appellant, and Mary A. Frost et al., as Executors of Calvin Frost, Deceased, et al., Respondents

The New York Life Insurance and Trust Company, as Trustee of Francis W. Lasak, Deceased, Appellant, v. Ophelia J. Cuthbert et al. and Antoinette Lucinda Schermerhorn, Appellant, and Mary A. Frost et al., as Executors of Calvin Frost, Deceased, et al., Respondents. Reported below, 31 App. Div. 191. (Submitted November 21, 1898; decided November 29, 1898.) Motion to prefer an appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered August 16, 1898, modifying and, as modified, affirming a judgment entered upon the report of a referee. The motion was made upon the ground that one of the defendants died after the action was at issue and that the appeal was entitled to a preference under subdivision 4, section 791 of the Code of Civil Procedure. R. E. <& A. J. Prime for motion. No one opposed. [MAJORITY] Motion denied upon the authority of Colton v. Pf. Y. Elevated R. R. Co. (151 N. Y. 266), without costs.