Opinion
Argued November 29, 1972
Decided December 29, 1972
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, JOHN F. SKAHEN, J.
Samuel Kirschenbaum and Arthur Winoker for appellant.
Thomas J. Leyden for respondents.
No appearance for third-party defendant.
MEMORANDUM. The award for the amount of plaintiffs' counsel fees was proper insofar as it embraced the cost of services rendered in defense of the claim of title interposed against the plaintiffs but was unauthorized to the extent that it included attorneys' fees incurred in prosecuting the action brought against the title insurance company and now before us ( Doyle v. Allstate Ins. Co., 1 N.Y.2d 439); and remand is necessary for determination of the amount of the attorneys' fees properly incurred in the defense of the title action and for modification of the judgment accordingly. Otherwise, the order of the Appellate Division, to the extent that it is before us pursuant to the Appellate Division's grant of leave, is correct.
The order appealed from should be modified so as to provide that the case be remitted to the Supreme Court, Rockland County, for further proceedings in accordance with this memorandum and, as so modified, affirmed, without costs.
Chief Judge FULD and Judges BURKE, SCILEPPI, BERGAN, BREITEL, JASEN and GIBSON concur.
Ordered accordingly.