(dissenting). I dissent and vote to affirm the order herein. The decedent, by whose testamentary direction and bounty the Foundation was created and endowed, manifested Ms clear intention that it shall have no less than three *211trustees and directors. The power of the Supreme Court to appoint a third trustee and director is clear. (Goldstein v. Trustees of Sailors’ Snug Harbor, 277 App. Div. 269, 280.) The third director died September 12, 1958, and the instant proceeding was not commenced until July 8, 1959. The record, and the proceedings had, demonstrate inability of the two remaining trustees and directors to agree on a third. Moreover, it appears that the testamentary purpose and intent of the testator would be best served by the judicial appointment of a third trustee and director beholden to neither of the two present incumbents.
Breitel, J. P., M. M. Frank, Valente and Stevens, JJ., concur in Per Curiam opinion; McNally, J., dissents in opinion.
Order reversed on the law and on the facts, and in the exercise of discretion, the application denied, and the petition dismissed, with $20 costs and disbursements to appellants, without prejudice to the making of a new application upon a showing that bona fide efforts on the part of the two trustees to agree upon an additional trustee have met with failure. Such a showing shall be more than the mere conclusory statement of inability to agree and shall include the names advanced and rejected by each trustee.
Settle order.