
    Louis H. Pink, Superintendent of Insurance of the State of New York, as Rehabilitator of Bond and Mortgage Guarantee Company, Appellant, v. Title Guarantee and Trust Company, Respondent.
    Submitted May 24, 1937;
    decided June 8, 1937.
   Motion for reargument denied. Upon this appeal we decided only that the matters alleged in the answer did not constitute debts or credits which might be offset against the cause of action alleged in the complaint based, as we said, upon “ the fraud and imposition practiced and upon the unjust enrichment of defendant under cover of confidential and fiduciary relations through the common directorate.” We expressed no opinion upon the merits of the issues which must await trial. Nothing we have said may properly be construed as an expression of opinion, or assumption, that the cause of action alleged may be established merely by proof that the result, even though, perhaps, beneficial to the plaintiff, has been accomplished by acts which are ultra vires, but not otherwise illegal and fraudulent. (See 274 N. Y. 167.)  