I concur in the affirmance of this judgment, upon the ground that the relation between the plaintiff and the defendant Raymond was in its nature fiduciary, entitling the plaintiff to require Raymond to account for the stock that was placed in his hands to carry out what was understood to-be the common object of the parties to rehabilitate the credit of the corporation in which they both were largely interested. The court below has found that Raymond induced the plaintiff to deliver his stock in the corporation in which the parties were interested for the purpose of procuring with that stock the active assistance necessary to enable the company to continue its business. The misrepresentations by which the delivery of that stock was induced are not material to enable the plaintiff to maintain his action to require Raymond to account for the stock that he received and which was to be applied by him for a particular purpose. If Raymond induced the plaintiff to deliver the stock upon the statement that a specified use of the plaintiff’s stock was necessary to enable the corporation to continue its business, and the plaintiff delivered that stock upon the representation and understanding that it was to be used to secure the active assistance of the Pittsburg parties in the enterprise, and Raymond, receiving the stock for that special purpose, appropriated it to his own use, without having used it or being required to use it for that purpose, there would, I think, be a cause of action in equity for an accounting, irrespective of the fact that the original delivery of the- stock was obtained by fraud. If, after Raymond had received this stock, he had actually delivered it to those in Pittsburg with whom he was in communication, I do not think this action could be maintained in the form in which it was brought; but as the court found, upon evidence which I think sustained the finding, that Raymond represented to the plaintiff -that in order to induce those in Pitts-burg to become interested in the company it was essential that the plaintiff should transfer his stock to them, and that the plaintiff intrusted "Raymond with the stock in question for that purpose, there arose as between the parties a fiduciary relation in regard to that stock whereby Raymond became bound to treat the stock received from the plaintiff as property held by Mm in trust, to be used for the purpose for which it was delivered and for which the *335plaintiff is entitled to compel Raymond to account. (Marvin v. Brooks, 94 N. Y. 71.)
This also answers the claim of the defendants as to the Statute of Limitations, and although I agree with Mr. Justice Hatch that, upon the evidence, a finding that the plaintiff knew or should have known of the fraud which induced him to deliver the stock to Raymond before January, 1894, would have been without evidence to support it, my view of the nature of the action is that it is not controlled by subdivision 5 of section 382 of the Code of Civil Procedure, but that it comes under section 388 of the Code, and the statute would not run until ten years had elapsed from the time the cause of action accrued. I also think that the finding of the referee is amply sustained by the evidence, and that no error was committed to justify a reversal of the judgment.
Judgment affirmed, with costs.