Opinion
March 5, 1973
In an action for money had and received, defendant appeals from an order of the Supreme Court, Westchester County, dated June 12, 1972, which granted plaintiff's motion for summary judgment. Order reversed, without costs, and motion denied. The sum of $2,200 was paid by plaintiff to defendant for the purchase of an automobile. Defendant refused to deliver the vehicle or return the money, claiming that it was the victim of fraud perpetrated by one of its salesmen. In our opinion, a trial should be had on all the issues presented ( Bernstein v. McCormack Motor Sales, 40 A.D.2d 692). Munder, Acting P.J., Martuscello, Gulotta, Christ and Benjamin, JJ., concur.