
    Second Department,
    May, 1909.
    Seamon Frank, Respondent, v. Adolph Firestone, Appellant.
    
      Trust — basis of equitable jurisdiction — trial —weight of evidence.
    
    Appeal by the defendant from a judgment of the Special Term in favor of the plaintiff, entered in the office of the clerk of Kings county on the 9th day of October, 1908.
   Woodward, J.:

The plaintiff' brings this action in equity to establish the existence of a trust relation between the parties growing out of certain real estáte transactions and for an accounting by the defendant respecting the proceeds thereof. The plaintiff’s cause of action is based upon the theory that he had contracted for two certain parcels of real estate intending to sell them to a real estate company by which he was employed as a sales manager upon a com mission basis; that for reasons of his own he employed the defendant for a con sideration of §100 to act as a dummy in the transaction, the plaintiff furnishing all of the money; that the defendant entered into the arrangement, became the nominal party to the contracts which were entered into, resulting in a profit of over $2,000, which sum the defendant has failed to pay over to the plaintiff. The theory of the defendant is that he was the real principal in the transaction; that he repaid the plaintiff the sums which the latter had loaned to carry out the deals, together with a commission of §300, and that the plaintiff has no standing in the action. There was a sharp conflict in the evidence, but it cannot be said that there is not evidence to support the plaintiff’s version, and under such circumstances appellate courts do not,, as a rule, interfere. It is urged with great persistency that the documentary evidence wholly contradicts the oral evidence, and that the weight of evidence is with the defendant. While it is true that upon its face the documentary evidence, unexplained, would seem to support the' defendant’s contention, we are of the opinion that in connection with the entire case there is no irreconcilable difference, and that the learned court below was fully justified in its conclusion. The suggestion that the defendant, having invested the fund in other real estate, has taken away the jurisdiction of the court.to declare a trust in the particular fund is hardly worthy of serious discussion. The equitable jurisdiction rests upon the defendant’s abuse of a confidential or fiduciary relation, and no action of the defendant can destroy the right of the plaintiff to follow the fund or to require such relief as the circumstances permit. The judgment' should be affirmed, with costs. Jenks, Gaynor, Burr and Rich, JJ., concurred. Judgment affirmed, with costs.  