man, 153 N. Y. 309, 314, 47 N. E. 577. But the sole question before us is whether, under the circumstances, the ruling was reversible error, so far as the judgment and order are concerned. I think that it was not. Assume that the witness had been permitted to answer that the plaintiff's attorney had sought to suppress or to change his testimony. Plainly, the attempt, if made, had failed; for the defendant does not quarrel with his witness, and there is not a vestige of testimony even suggested that plaintiff had the slightest concern with the affair. In justice to Mr. Pearsall, the attorney and counsel, it should clearly be understood that the record does not show that any attempt was made. I simply discuss the question of the ruling upon the assumption that the witness might have testified to this thing, and that his testimony might have been credited. At the close of the charge the learned counsel for the defendant asked the court "to charge the jury that, if they are in doubt after hearing all this testimony, they must give their verdict for the defendant." The court declined, and defendant excepted. Such request, if charged, might have been construed by the jury as a statement by the court that the plaintiff could not prevail if there was any doubt in the minds of the jury, or that she must prove her case to the satisfaction of the jury, beyond a doubt, and not merely by a clear preponderance of the credible evidence. The learned counsel for the appellant quotes this excerpt from the opinion in Hale v. Smith, 78 N. Y. 480: "If the evidence left the jury in doubt whether the injury was occasioned by the fault of defendant's intestate alone, or was caused or contributed to by the viciousness of the horse, the defendant was entitled to the benefit of that doubt, and the plaintiff had failed to make out his case." But the learned counsel apparently omitted to notice that Rapallo, J., in the very next sentence, said: "This is only stating in another form the proposition that the plaintiff was bound to prove the controverted facts by a preponderance of testimony." Dunwell, J., the learned trial justice, had charged the jury that the burden was upon the plaintiff to establish the essential features of her case by a fair preponderance of the credible testimony in the case; and he had further charged that if, upon the conflict of testimony, the plaintiff had not proved her case by a preponderance of testimony, but the testimony stood equal, there could be no recovery by the plaintiff, because it was incumbent upon her to prove her case by a fair preponderance. If the request under review was only stating in another form that the plaintiff was bound to prove the controverted facts by a preponderance of credible testimony, then it was not error for the court to refuse reiteration. Rommeney v. City of New York, 49 App. Div. 64, 63 N. Y. Supp. 186. If it required a higher standard from the plaintiff, then it is counter to the law. Trust Co. v. Siefke, 144 N. Y. 354, 39 N. E. 358; Whitlach v. Casualty Co., 149 N. Y. 45, 43 N. E. 405; Foo Long v. Ghu Fong (Sup.) 6 N. Y. Supp. 406; Stearns v. Field, 90 N. Y. 640; Indemnity Co. v. Gleason, 78 N. Y. 503; Tholen v. Railroad Co., 10 and 103 New York State Reporter Misc. Rep. 283, 30 N. Y. Supp. 1081, affirmed in 151 N. Y. 627, 45 N. E. 1134. The appellant may accept either horn of the dilemma. The judgment and order must be affirmed, with costs. (59 App. Div. 150.) SEITZ v. SEITZ. (Supreme Court, Appellate Division, Second Department. March 8, 1901.) 1. ACCOUNTING-FRAUD-LIMITATIONS OF ACTIONS. For 18 years plaintiff had loaned money on the advice of his son, the defendant. The business was transacted by defendant, but in each transaction plaintiff was consulted. Defendant had fully accounted for all moneys handled by him during the six years next preceding the action for an accounting, but plaintiff claimed that from 15 to 12 years prior to the action the defendant had received profits on investment of plaintiff's funds which were not accounted for. Defendant had not taken title in his own name to any property in which plaintiff's funds were invested, and there was no express trust. Held, that if there was any trust it was a constructive one, and the action was barred by limitations in six years from the time the wrong was committed. 2. SAME. Where an action is brought for an accounting by defendant for moneys which have been invested by him for the plaintiff, the action is not one for fraud, within the exception of Code Civ. Proc. § 382, subd. 5. providing that, in an action to recover on the ground of fraud, the cause of action is not deemed to have accrued until the discovery by plaintiff of the facts constituting the fraud. Appeal from special term, Kings county. Action by Frederick Seitz against Louis F. Seitz. From a judgment dismissing the complaint, plaintiff appeals. Affirmed. Argued before GOODRICH, P. J., and WOODWARD, HIRSCHBERG, JENKS, and SEWELL, JJ. John C. McGuire, for appellant. JENKS, J. The plaintiff appeals from a judgment of the special term dismissing his complaint. On January 5, 1899, he began this action against his son for an accounting, for judgment for any money found due thereon, and to declare a lien therefor upon certain realty of the defendant. In 1881 the plaintiff was a lithographer, and the defendant was a clerk in the office of Wilson, a wool merchant in New York City. Upon the suggestion of the son, the father began to put out, in his own name, his money at interest with Wilson, in September, 1881. The account ran until 1889, and for a time within such period a similar account was opened with Mauger & Avery, wool merchants, who occupied the office with Wilson. From January, 1882, until May, 1889, the defendant also had an account with Wilson. The deposits of the plaintiff were almost invariably made by the defendant. During the period of his said account, the plaintiff ventured upon real-estate transactions in New York City, largely upon the counsel of his son, who managed the affairs. The last piece of property in New York City was sold in August, 1889, and at that time it appears that the plaintiff owned, in mortgages and in moneys to his credit with Wilson ($9,264), about $20,000. In June, 1888, the plaintiff began to buy and to trade Brooklyn realty, and to build thereon, through the defendant and upon his advice. The defendant at the same time was engaged in similar transactions on his own account. In 1892 the plaintiff was and still is the owner of an apart ment house in Brooklyn. The defendant also owned and owns certain apartment houses in Brooklyn, and upon one of them the plaintiff seeks to fasten the lien of any judgment awarded to him in the accounting prayed for. The contention of the plaintiff, briefly stated, is that the defendant has used moneys of the plaintiff, and the fruits thereof are to be found in the realty in question. The long record before us is the history of the dealings of these parties throughout many years. The case was thoroughly tried by very able counsel, and the findings and conclusions are the work of a patient, acute, and learned trial justice, who has found that the defendant has fairly accounted for all of plaintiff's moneys and property received or intrusted to him since the 1st day of July, 1889. I think that his finding is fully warranted by the evidence. Further discussion, then, is limited to the transactions between the parties prior to July 1, 1889. The special term found that between the 1st day of December, 1881, and the 31st day of December, 1888, the defendant deposited with said Wilson divers large sums of money belonging to the plaintiff; that numerous large sums were from time to time drawn from the funds so deposited; that a portion of the money drawn was used to purchase real estate for the plaintiff; that a portion deposited was the proceeds of sales of real estate owned by the plaintiff; and that the defendant, to a great extent, managed such real-estate transactions; but that all such transactions were made after consultation with the plaintiff and by his consent. It also found that between July 1 and November 2, 1887, the defendant received the sum of $6,000 of the money of the plaintiff so deposited with Wilson. The learned trial justice (Mr. Justice Wilmot M. Smith) did not further find upon this branch of the case, and states that he does not express opinion as to the merits of the plaintiff's claim that the defendant had not fully accounted for all moneys involved prior to July 1, 1887, for the reason that the statute of limitations applies. Putting aside consideration of the facts which the learned counsel for the defendant insists establish that the transactions of the defendant were wholly clean, I consider whether the law was rightly applied. The theory of the plaintiff is that there was a trust, in that the plaintiff placed great confidence in his son's judgment and advice, and largely committed the venture to his management. There was no express trust. There was no breach of confidence or of good faith in any agreements touching any of the joint enterprises. It is not shown that the defendant took title to any realty in his own name under agreement subsequently to convey to the plaintiff, or that he bought realty in his own name with funds intrusted to him to buy realty for the plaintiff, and therefore that the principle of Wood v. Rabe, 96 N. Y. 414, and of Goldsmith v. Goldsmith, 145 N. Y. 313, 39 N. E. 1067, does not apply. The son had no general au and 102 New York State Reporter thority touching the investments in real estate and the sales thereof made for the father. Indeed, he advised with the plaintiff, and obtained his preliminary consent to them. The complaint is that there were secret peculations of money whereby the son could the more contribute to the joint ventures, from the profits of which the son ultimately could the more speculate for himself. There was no authority vested in the son as to the moneys given to him, save to deposit them with Wilson. If he failed to deposit them, or surreptitiously withdrew them from the account without authority, he committed, in each instance, an act of conversion. Laverty v. Snethen, 68 N. Y. 522. If there be any trust, it is such as is constructive, ex maleficio, or ex delicto. Such a trust is not constructed out of the original relation between the parties, but to enable equity to deal fully with the fraud that it abhors, and to follow, as far as it can, the proceeds and profits of dishonest dealing. Pom. Eq. Jur. § 1030; Wheeler v. Reynolds, 66 N. Y. 227, 236, et seq.; Mills v. Mills, 115 N. Y. 80, 86, 21 N. E. 714; Sugar Refining Co. v. Fancher, 145 N Y. 552, 558, 40 N. E. 206, 27 L. R. A. 757. And the term "trust" is used in that the owner can invoke the same remedies against the holder of the legal title as are open to the beneficiary under a true trust. Pom. Eq. Jur. § 1053. The charge of the plaintiff is that the defendant was honest in his dealing with the deposits up to May, 1884, but that almost immediately thereafter the wrongdoing began. But, as to a trust ex maleficio, the statute begins to run from the time when the wrong was committed by which the party becomes chargeable. Lammer v. Stoddard, 103 N. Y. 672, 673, 9 N. E. 328, and authorities cited; Kane v. Bloodgood, 7 Johns. Ch. 90; Mills v. Mills, supra; Burt v. Myers, 37 Hun, 277. The theory of this action is that an accounting is due from the defendant to the plaintiff. Therefore it does not fall within the exception contained in subdivision 5 of section 382 of the Code of Civil Procedure, inasmuch as this is not an action on the ground of fraud. Carr v. Thompson, 87 N. Y. 160, 164. If, as the learned counsel for the appellant contends, the transactions constituted a continuous or running account, the account seems to have been closed in October, 1892. The plaintiff would seek to continue them by the isolated payment made in 1895 by the defendant to one Holler for a balance due upon a carpenter's bill for work done on the apartment house of the plaintiff. This involves a question of veracity between the parties, for the plaintiff testifies that it was paid upon his direction by the defendant out of plaintiff's moneys in possession of the defendant, and the defendant testifies that he made the payment as an accommodation to his father because it had been due for two years, and Holler was pressing for his money. The plaintiff's theory of this payment is embodied in his twenty-ninth request to find, which was refused by the learned court. The judgment should be affirmed, with costs. All concur, except SEWELL, J., taking no part. ASHLEY V. ASHLEY. (Supreme Court, Appellate Division, Second Department. March 8, 1901.) 1. RECEIVERS-FAILURE TO BRING IN ALL PARTIES. Where a father, who had transferred certain stocks to his son and daughters under an agreement that they would support him, seeks to set aside such agreement for fraud, and to enjoin the transfer of the bonds, in a suit in which the son is the sole defendant, the appointment of a receiver at the request of the father will not be denied on the ground that the daughters should be parties to the suit. 2. SAME-SUFFICIENCY OF APPLICATION. Where the complaint in a suit by a father, who had transferred securities to his son and daughters in consideration of future support, to set the agreement aside, as secured by fraud, and to enjoin the transfer of the security, shows that the agreement was procured by fraud, and that the support was not furnished, and that there has been a devastavit, and the defendant withdraws affidavits opposing the appointment of a receiver, a receiver should be appointed. Appeal from special term, Orange county. Suit by William D. Ashley against Dexter D. Ashley to set aside an agreement, and to enjoin the transfer of certain bonds. From an order appointing a receiver, the defendant appeals. Affirmed. Argued before GOODRICH, P. J., and WOODWARD, HIRSCHBERG, JENKS, and SEWELL, JJ. Thaddeus D. Kenneson, for appellant. GOODRICH, P. J. The special term, upon a motion for injunction and the appointment of a receiver, appointed a receiver of certain securities which are the subject of this action. Curiously, the order recites that the defendant presented in opposition to the motion, and subsequently withdrew, certain affidavits. The only question, therefore, is whether, on the complaint and affidavits of the plaintiff, it was proper to appoint a receiver. The complaint and affidavits show that the plaintiff, being the owner of about $83,000 of securities, in January, 1898, transferred to each of his two daughters about $25,000 of them, and the balance to his son, the defendant, in consideration of their agreement to support him during his lifetime. The plaintiff alleges that this agreement was obtained by fraud and duress, and prays that it may be set aside and the securities adjudged to him. In November, 1899, the father and the three children entered into another agreement, modifying the former one, and providing a joint obligation of the three children to take care of the father. The plaintiff alleges that this agreement also was procured by fraud and duress, and that the defendant has not provided for him or complied with the contract, and prays that it may be set aside, and that the defendant may be compelled to account for the securities, principal and interest, received by him, and for the appointment of a receiver of the securities, and for an injunction restraining their transfer by the defendant. The main contention of the defendant is that no receiver should have been appointed, as no judgment can probably be recovered in |