Frances G. Amella et al., Individually and as Stockholders of Brooklyn Edison Company, Inc., Appellants, v. Consolidated Edison Company of New York, Inc., Respondent; Jerome Tanenbaum, Individually and as Sole Surviving Trustee of the Estate of Johanna Tanenbaum, Deceased, et al., Individually and as Stockholders in Those Capacities of Brooklyn Edison Company, Inc., Appellants, v. Consolidated Edison Company of New York, Inc., Respondent

Frances G. Amella et al., Individually and as Stockholders of Brooklyn Edison Company, Inc., Appellants, v. Consolidated Edison Company of New York, Inc., Respondent. Jerome Tanenbaum, Individually and as Sole Surviving Trustee of the Estate of Johanna Tanenbaum, Deceased, et al., Individually and as Stockholders in Those Capacities of Brooklyn Edison Company, Inc., Appellants, v. Consolidated Edison Company of New York, Inc., Respondent. [MAJORITY] 'Plaintiffs are not in position to question the fairness of the merger plan, either as allegedly depriving them of elements of value pertaining to their shares of stock by reason of the matters alleged in the complaints, or otherwise, after having accepted payment for their shares at the $135 provided by the plan, or in the amount arrived at by the appraisers. They could not accept the benefit of the merger plan and, at the same time, attack its validity, regardless of whether the appraisers had jurisdiction to take into account the matters alleged in the complaints in evaluating such shares. The orders dismissing the complaints and the judgments entered thereon are unanimously affirmed, with costs, without passing upon the other questions involved. Present — Peck, P. J., Glennon, Dore, Van Voorhis and Shientag, JJ.