It is the plaintiff’s position that despite the absence of any provision or stipulation creating or constituting the said sum a trust fund, and despite the absence of any provision or stipulation creating or constituting the defendant a trustee of said fund, the sum so deposited constitutes a trust fund and the defendant is the trustee thereof by virtue of the provisions of section 233 of the Real Property Law, and that the mingling of such moneys by the defendants with the personal moneys of the defendant is a conversion.
Section 233 provides: “ Money deposited or advanced for use or rental of real property. Whenever money shall be deposited or advanced on a contract for the use or rental of real property as security for performance of the contract or to be applied to payments upon such contract when due, such money, with interest accruing thereon, if any, until repaid or so applied, shall continue to be the money of the person making such deposit or advance and shall be held in trust by the person with whom such deposit or advance shall be made and shall not be mingled with the personal moneys or become an asset of the person receiving the same, but may be disposed of as provided in section thirteen hundred and two-a of the penal law. Any provision of such a contract whereby a person who so deposits or advances money waives any provision of this section is absolutely void. ’ ’