The circumstances under which the payment was made on account of the second mortgage, the fact that it was made in violation of an understanding between Collins and his co-directors, together with the testimony of the witness Barnett, were sufficient to establish a prima facie cause of action against Collins requiring that defendant to explain the transaction by proof.
The judgment insofar as it dismisses the complaint as against the defendant Collins should be reversed and a new trial granted as to said defendant with costs to the appellant to abide the event, the action severed, and the judgment insofar as it dismisses the complaint as against the defendant Guide Realty Company affirmed with costs. The order appealed from should be reversed and the motion for an order pursuant to section 61-a of the General Corporation Law denied.
Martin, P. J., Untermyer, Cohn and Callahan, JJ., concur; Dore, J., dissents and votes to affirm the judgment and order.
Judgment insofar as it dismisses the complaint as against the defendant Charles A. Collins reversed and a new trial ordered as to said defendant, with costs to the appellant to abide the event, the action severed, and the judgment insofar as it dismisses the complaint as against the defendant Guide Realty Company affirmed, with costs. Order reversed and the motion for an order pursuant to section 61-a of the General Corporation Law denied.