Order, Supreme Court, New York County, entered on August 4, 1970, sustaining prima facie the objections of guardian ad litem, and referring to a private Referee the issue of motive of the petitioner cotrustee to hear and report, unanimously modified, on the law, to the extent of vacating the order of reference, and otherwise affirmed, without costs and without disbursements. The petitioners' motion to dismiss the objections of the guardian ad litem was properly denied. Special Term had before it a motion pursuant to CPLR 404 (subd. [b]), 3211 (subd. [a], par. 7) and 3211 (subd. [b]), limitedly designed to test the sufficiency of the pleadings. If the court chose to treat the submission as a motion for summary judgment, on an issue of such large consequences, the court should have given the petitioner an opportunity to submit affidavits in response to the objections contained in the report of the guardian. Instead, Special Term taxes the petitioner with having "made no direct response to the charge". In denying the motion to dismiss, we anticipate a motion for summary judgment on the part of the petitioner and a full disclosure and submission. This may obviate the need of a private Referee. On the papers before us, the appointment was premature.
Concur — McGivern, J.P., Markewich, Steuer and Tilzer, JJ.