
    Woodrow N. Irwin, as Trustee for the Beneficial Owners of the Photoplay “Not Wanted ”, Respondent, v. Eagle Lion Classics, Inc., et al., Defendants, and New York Trust Company, Appellant.
    First Department,
    March 2, 1954.
    
      
      Samuel Gottlieb of counsel (Thomas Gapek with him on the brief; Getting er & Getting er, attorneys), for Woodrow N. Irwin, as trustee, respondent.
    
      William St. John Toser of counsel (Robert F. Little and James Marshall with him on the brief; White & Case, attorneys), for New York Trust Company, appellant.
   Per Curiam.

Upon examination of the pleadings, contracts and affidavits it clearly appears that the relationship between the parties to the contract of February 14, 1949, was one of debtor and creditor. The agreement provides ‘ ‘ that, notwithstanding any language contained herein to the effect that Producer is entitled to receive a portion of the gross receipts of the Picture as hereinabove provided, none of the proceeds or gross receipts of the Picture shall be deemed trust funds or to be held in trust by Distributor for Producer, and Distributor shall have no fiduciary obligation to Producer with respect thereto ’ ’. This language is repeated in the amended agreement of March 3, 1949.

The complaint, when read as a whole, discloses that plaintiff’s cause of action against the appellant is based upon this agreement. While the pleading contains some general language to the contrary there has been no proof submitted by plaintiff to raise a triable issue as to such allegations. If the funds deposited with the appellant were not trust funds as between plaintiff’s assignor and Film Classics, Inc., then in the absence of proof to the contrary, the appellant did not hold them as trust funds. Such proof has not been supplied and no triable issue is presented.

The order appealed from, insofar as it denies the motion of appellant, should be reversed and the motion for an order dismissing the complaint as to appellant and for summary-judgment should be granted.

Dore, J. P., Cohn, Callahan, Bastow and Botein, JJ., concur.

Order, insofar as it denied the motion of appellant, unanimously reversed and the motion for an order dismissing the complaint as to appellant and for summary judgment granted. Settle order on notice. [See post, p. 793.]  