¶1I do hot quite see how we can hold that this claim is not cut off by the discharge in bankruptcy in view of our decision in Lewis v. Shaw (122 App. Div. 96).
¶2In that case the plaintiff left with the defendant specific money for safekeeping; the defendant used it wrongfully, and very likely committed the crime of grand larceny in so doing. We held that the defendant’s liability was not one created by his fraud, embezzlement or defalcation while acting in any fiduciary capacity within the meaning of the Bankruptcy Law.; nor do I think that the defendant was an officer within the meaning of that law.
¶3The decision in the case of Harper v. Rankin (141 Fed. Rep. 626), referred to by Fir. Justice Spbieg, seems to rest upon the proposition that the debt was created in a fiduciary capacity.
¶4Reither do I see how the plaintiff’s cause of action can be regarded as one for obtaining money or property by false pretenses or false representations. It is true that the defendant may have committed a fraud upon his company, the plaintiff, by using its paper as he did, but how can it be said that he obtained the money or property of the corporation by false or fraudulent representations ? What false and fraudulent representations did he make to the corporation ?
¶5As regards the charge it seems to me the exceptions were too *136general to raise the question upon which it is proposed to reverse the judgment. The questions for the jury to pass upon were formulated by the trial judge to the satisfaction of- both parties, and stated at the outset; and I think the questions were well understood by the jury.
¶6I vote for affirmance.
¶7Judgment, and order reversed and new trial ordered, with costs to appellant to abide event, upon questions of law and of fact.