
    Bridgett T. Cunningham and Rodger Cunningham, Appellants, v. William G. Mulligan and Another, Respondents.
    Judgment reversed and new trial granted, costs to abide the event. The record shows an admission by the defendants that both of them received the money of the plaintiffs. It is undisputed that they received it for the purpose of investment on mortgage security. There is evidence tending to show that they did not invest it but appropriated it to their own use, using dummies and devices to cover up the misappropriation. The complaint is sufficient. No plea of tender to restore the fictitious securities was necessary. The case should have been submitted to the jury. (See King v. Mackellar, 109 N. Y. 215.)
   Jenks, P. J., Thomas, Stapleton, Mills and Putnam, JJ., concurred.  