
    The People of the State of New York, Respondent, v. Robert E. Lowther, Appellant.
    Fourth Department,
    May 9, 1934.
    
      Ethan W. Judd, for the appellant.
    
      John J. Bennett, Jr., Attorney-General [George R. Van Alstyne, Assistant Attorney-General, of counsel], for the respondent.
   Per Curiam.

The statute (Gen. Business Law, § 353-a) authorizes a receiver appointed thereunder to take control of that property only which is derived by a defendant by means of those fraudulent practices defined in section 352 of the same act, including all property with which it has been mingled, if it cannot be identified in kind because of such commingling, together with any or all books of account and papers relating to the same. Unless it is found that the property derived by defendant from the acts complained of is so mingled with the units of Madawaska Syndicate owned by him at the time of the trial herein as to prevent identification, we find nothing in the record which justifies a direction to the receiver to single out and take control of the particular property comprising said units.

All concur.

Judgment modified on the law, and as modified affirmed, without costs of this appeal. Conclusions of law modified.  