
    Edward A. Fleckenstein, as Administrator D. B. N. of the Estate of Herbert T. Kerrigan, Deceased, Appellant, v. Harold A. Nehrbas et al., Respondents. In the Matter of the Estate of Herbert T. Kerrigan, Deceased. Edward A. Fleckenstein, as Administrator of the Estate of Herbert T. Kerrigan, Deceased, Appellant; Fireman’s Fund Insurance Company, Respondent.
   In an action against stockbrokers (defendants Nehrbas et al„ trading as Parrish & Co.) to recover damages by reason of their having guaranteed the decedent’s forged signatures on certain stock certificates, such guarantee having been procured by his widow prior to his death, which action was transferred from the Supreme Court to the Surrogate’s Court and there consolidated with a reopened accounting proceeding, Edward A. Fleckenstein, as plaintiff and as administrator de bonis non of the decedent’s estate, appeals from an order of the Surrogate’s Court, Nassau County, dated March 10, 1964, which denied his motion: (1) to dismiss the defenses pleaded by the defendant stockbrokers (CPLR 3211, subd. [b]); or (2) in the alternative, for summary judgment in his favor and against said defendants (CPLR 3212). Order affirmed, with $10 costs and disbursements. In our opinion, whether the complaint states a cause of action predicated upon a theory of conversion or upon a theory of negligence, both of which find some support in its allegations, will depend upon the facts adduced upon trial, and particularly upon the facts as to the circumstances under which the decedent’s name was written on the certificates of stock. The issues of fact which we held precluded the granting of summary judgment to the defendants on the prior appeal in this action (16 A D 2d 811) similarly preclude the granting of the relief now sought by the plaintiff administrator. Beldock, P. J., Ughetta, Christ, Rabin and Hopkins, JJ., concur.  