(dissenting). The complaint here in essence sets forth that defendant hotel holds in trust a fund of some $3,000,000 created by many contracts, and that plaintiff and other persons, as the third-party beneficiaries of those contracts, are the beneficiaries of the trust.
Plaintiff, suing in a representative capacity, is seeking to impress a trust on the sums improperly held; is asking that an accounting be had and that the court administer the fund by dividing it among those whose interests may appear. Though in his prayer for relief plaintiff demands judgment for a sum of money only, the facts stated in the complaint show that the cause of action is in equity requiring equitable relief. It is not an action for the recovery of money only. A court of equity alone can afford the remedies and relief necessary to redress the wrongs alleged. (Bell v. Merrifield, 109 N. Y. 202, 207; Auerbach v. Chase Nat. Bank, 251 App. Div. 543, 545.) The order striking the case from the jury calendar and placing it upon the Special Term Calendar should in all respects be affirmed.
*465Callahan-, Van" Voobhis and Bbeitel, JJ., concur in Per Curiam opinion; Cohn", J. P., dissents and votes to affirm, in opinion.
Order reversed, with $20 costs and disbursements to the appellant and the motion denied. [See post, p. 972.]