(dissenting). I dissent and vote to modify the order of the Appellate Division and the decree appealed from by disallowing the application of depreciation reserves to the payment of (1) the capital loss of $178,000 as a result of the stock investment in the Central Concrete Mixing Corporation, and (2) the $55,750 principal balance of the first mortgage covering the Oceana Theatre premises (Hascall v. King, 162 N. Y. 134; Thorn v. De Breteuil, 179 N. Y. 64; Guaranty Trust Co. of N. Y. v. Holsted, 245 N. Y. 447, 462; Matter of Adler, 164 *736Misc. 544; Matter of McLaughlin, 164 Misc. 539; Matter of Kaiser, 58 N. Y. S. 2d 787; Matter of Danziger, 58 N. Y. S. 2d 790, 794-796, mod. on other grounds and otherwise affd. 271 App. Div. 888; Real Property Law, § 61; Personal Property Law, § 16). The disposition below sanctions ah improper transfer from income to principal and violates the settled public policy of the State against accumulations.
Lewis, Ch. J., Conway, Desmond, Dye, Fuld and Van Voobhis, JJ., concur; Fboessel, J., dissents in memorandum.
Order affirmed.