
    George Cassimatis, Respondent, v. Panaghis D. Marchesini, Appellant.
   In an action to recover damages for breach of an agreement under which plaintiff invested a sum of money in defendant’s enterprises and was to receive a percentage of the gross profits therefrom, order denying defendant’s motion to dismiss the complaint for failure to state facts sufficient to constitute a cause of action reversed on the law, with $10 costs and disbursements, and the motion granted, without costs, with leave to plaintiff to serve a new complaint, within ten days after entry of the order hereon, setting forth a cause of action at law for the alleged breach. The complaint fails to set forth facts from which it may be found that a relationship of mutual trust and responsibilities existed between the parties. (Bialostok v. A. & M. Knitting Mills, 272 App. Div. 936.) Johnston, Adel, Sneed and Wenzel, JJ., concur; Nolan, P. J., dissents and votes to affirm, with the following memorandum: In my opinion the complaint is sufficient, in that it alleges a relationship “ of agency and of a trust reposed ”, with respect to the money invested (Schantz v. Oakman, 163 N. Y. 148, 157). [See post, p. 1057.]  