
    Franklin Steele, as Administrator with the Will Annexed of Louise Gwynne, Deceased, Appellant and Respondent, v. James M. Leopold et al., as Copartners under the Firm Name of James M. Leopold & Co., Respondents and Appellants, Impleaded with Others.
    
      Steele v. Leopold, 135 App. Div. 247, affirmed
    (Argued January 20, 1911;
    decided February 7, 1911.)
    Cross-appeals from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 22, 1910, which modified and affirmed as modified a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an action to recover certain trust funds alleged to have been wrongfully diverted.
    
      C. P. Waterbury for plaintiff, appellant and respondent.
    
      Edmond F. Wise for defendants, respondents and appellants.
   On plaintiff’s appeal the judgment of the Appellate Division is modified, so that instead of reducing the judgment in favor of the plaintiff a new trial is ordered, with costs to abide the event. If, however, within ten days plaintiff files in this court a stipulation waiving his appeal, then the judgment of the Appellate Division is affirmed, without costs in this court to either party; no opinion.

Concur: Cullen, Ch. J., Gray, Haight, Werner, Willard Bartlett, Chase and Collin, JJ,  