
    William W. Rutherfurd, Respondent, v. J. Herbert Carpenter, Appellant.
    
      Rutherfurd v. Carpenter, 134 App. Div. 881, reversed.
    (Argued April 6, 1911;
    decided April 25, 1911.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 9, 1909, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an action to charge the defendant with a trust ex maleficio.
    
    
      John 8. Davenport for appellant.
    
      F. It. Minrath and Henry 8iegrist for respondent.
   Judgment reversed and new trial granted, costs to abide event, on dissenting opinion of Ingraham, J., below.

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