October 6, 1975
In an action by beneficiaries of an inter vivos trust against the trustee for an accounting, removal of and surcharge against the trustee and for payment of income out of the trust, (1) defendant appeals from so much of an order of the Supreme Court, Dutchess County, dated October 8, 1974, as, upon granting her motion to dismiss the complaint, conditioned said dismissal upon defendant's stipulating to appear and submit to jurisdiction in any similar action which plaintiffs might bring in the State of Pennsylvania and (2) plaintiffs cross-appeal from the same order in its entirety. Order modified, by deleting therefrom the second decretal paragraph, which imposed the above-mentioned condition. As so modified, order affirmed, with $20 costs and disbursements to defendant. The dismissal of an action or proceeding for failure to join a necessary party may not be conditioned upon the movant's stipulating to submit to a foreign jurisdiction (see CPLR 1001, 1003). Rabin, Acting P.J., Hopkins, Christ and Munder, JJ., concur; Shapiro, J., dissents and votes to affirm, without modification, with the following memorandum: The order under review was proper and should be affirmed.