Opinion
December 16, 1940.
Order granting plaintiff's motion to strike out as insufficient in law the first partial defense contained in defendant's amended answer reversed on the law, with ten dollars costs and disbursements, and motion denied with ten dollars costs. In our opinion plaintiff's cause of action is for money had and received, based upon an executed rescission of certain contracts for fraud and, therefore, defendant is entitled to invoke the provisions of subdivision 1 of section 48 of the Civil Practice Act. ( Cohen v. City Company of New York, 283 N.Y. 112; Steinert v. Title Guarantee and Trust Company, 258 App. Div. 927; affd., 283 N.Y. 636; Hamill v. Title Guarantee and Trust Company, 260 App. Div. 873.) Lazansky, P.J., Hagarty, Carswell, Johnston and Adel, JJ., concur.