
    Margaret Sullivan Herbermann and Charles George Herbermann, as Executors, etc., of Henry Herbermann, Appellants, v. New York Shipbuilding Corporation and Others, Respondents.
   Appeal by the plaintiffs from a judgment of the Supreme Court, entered in the New York county clerk’s office on March 1, 1940, dismissing the complaint upon the merits at the close of plaintiff’s case at Trial Term.

Judgment affirmed, with costs. No opinion.

Present — Martin, P. J., O’Malley, Townley, Dore and Callahan, JJ., O’Malley, J., dissents in opinion.

O’Malley, J.

(dissenting). In my opinion plaintiffs’ Exhibit 29 was tantamount to a bill of sale. Under such circumstances the plaintiffs were entitled to introduce evidence tending to show that the transfer of the securities was not absolute but merely by way of pledge or with the right to plaintiffs’ testator to repurchase. It was error, therefore, to strike out testimony already received tending to show a pledge, or the right in plaintiffs’ testator to repurchase, and plaintiffs should have been afforded opportunity further to develop their case under such theory. The questions (1) whether the testimony stricken out was sufficient to establish the oral agreement relied upon and (2) its alleged illegality should be determined only after there has been a full adducement of the facts.

I, accordingly, dissent and vote for a reversal of the judgment and for a new trial.  