In an action wherein the plaintiff seeks to have it decreed that the defendant's intestate held a parcel of real property in trust for the plaintiff, and for an accounting, defendant appeals from a resettled order which denied his motion to dismiss the complaint under subdivision 5 of rule 107, or subdivision 5 of rule 106 of the Rules of Civil Practice. Order affirmed, with $10 costs and disbursements. ( Gurland v. Gurland, 256 App. Div. 924. ) Nolan, P.J., Johnston, Adel, Wenzel and MacCrate, JJ., concur.