dissent">Cohn, J. (dissenting).

When Louis N. Shour committed suicide he was practically penniless and his liabilities were over $400,000. If plaintiff’s money had not been employed by Shour to pay the premiums which fell due between January and April, 1932, on the life insurance policies of the Connecticut Mutual Life Insurance Company, the Central Union Life Insurance Company and the Travelers Insurance Company, these policies would have lapsed and the entire proceeds thereof, amounting to $86,507.71, would have been lost to Shour’s widow, the defendant-appellant. During the period Shour was unlawfully using plaintiff’s money to pay these insurance premiums, it may reasonably be inferred from the evidence that he had no other resources with which to meet these payments.

Moreover, the defendant-appellant, who was the beneficiary under these policies, must have been familiar with all of the terms and the date of issuance of each of them. Hence she was in a position to show, if it were a fact, that the proportionate share of the proceeds of these policies purchased by money embezzled from the plaintiff did not entitle the plaintiff to a recovery of the full amount of the trust fund, namely, $4,750.

There was ample justification for the conclusion reached by the learned justice at Special Term, “ that as the premiums paid out of trust funds have been traced into a fund which would be nonexistent were it not for the embezzlement, the entire fund whose esse rests on the embezzlement of the trust fund is chargeable to the trust fund to the extent of the trust fund.”

In my view there is no necessity for a new trial as the proof in the record sufficiently establishes plaintiff’s right to a recovery from the defendant-appellant in the full amount of the fund which was wrongfully taken from him by the deceased.

I, therefore, vote to affirm the judgment with costs.

Judgment reversed and a new trial ordered, with costs to the appellant to abide the event.

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