
    Rose Klein, Respondent, v. Jacob Bernard Horowitz, Appellant, Impleaded with Jacob Horowitz, Defendant.
    First Department,
    April 6, 1934.
    
      Sydney J. Schwartz of counsel [Harry T. Zucker with him on the brief; Abraham Wilk, attorney], for the appellant.
    
      Lewis Herman, for the respondent.
   Per Curiam.

Since it is admitted that the appellant is a trustee for the plaintiff, he is under a duty to account to her for his administration of the trust. The court should not, however, have directed payment to the plaintiff of the sum of $2,500, or any other sum, for the affidavits present issues of fact concerning the liability of the trustee upon any accounting which may be had.

The judgment and order should be modified by ehminating the provisions requiring the appellant to pay to the plaintiff the sum of $2,500, with interest, and by directing an accounting before the justice at Special Term, and as so modified affirmed, without costs.

Present — Finch, P. J., Merrell, Townley, Glennon and Untermyer, JJ.

Judgment and order modified by ehminating the provisions requiring the defendant to pay to the plaintiff the sum of $2,500, with interest, and by directing an accounting before the justice at Special Term, and as so modified affirmed, without costs.  