
    Louis Marsullo, Respondent, v. Alfred Marsullo, as Sole Surviving Executor and Trustee under the Last Will and Testament of Mary D. Marsullo, Deceased, Appellant.
   Order, on reargument, denying defendant’s motion to dismiss complaint, or, in the alternative, staying the further prosecution of this action and remitting plaintiff to the Surrogate’s Court of New York county affirmed, with ten dollars costs and disbursements; with leave to defendant to answer within ten days from the entry of the order hereon. Appeal from order dated January 30, 1939, dismissed. No opinion. Lazansky, P. J., Taylor and Close, JJ., concur; Carswell and Adel, JJ., concur as to dismissal of appeal from order dated January 30, 1939, but dissent and vote to reverse the order on reargument and grant the motion to the extent of remitting the matter to the Surrogate’s Court where a jury trial may be had if the plaintiff has the right to such jury trial.  