In an action to recover damages, predicated upon a complaint alleging false representations assertedly made by defendant, while acting in a fiduciary capacity, plaintiffs appeal from an order of the Supreme Court, Nassau County, dated December 22, 1972, which granted defendant's motion to dismiss the complaint, on a defense founded upon documentary evidence (CPLR 3211, subd. [a], par. 1), and from a judgment of the same court, dated January 11, 1973, entered upon such order. Order and judgment affirmed, with $20 costs and disbursements. No opinion. Munder, Acting P. J., Latham, Shapiro and Christ, JJ., concur; Benjamin, J., dissents and votes to reverse and to deny the motion to dismiss the complaint, with the following memorandum: In my opinion, a constructive trust exists by reason of the relationship of the parties, raising the issue of fraud on defendant’s failure to disclose the consideration received by him (Meinhard v. Salmon, 249 N. Y. 458).