Opinion
July 9, 1973
In an action for money had and received, defendant appeals from an order of the Supreme Court, Westchester County, dated June 19, 1972, which granted plaintiff's motion for summary judgment in part. Order reversed, without costs, and motion denied. Plaintiff claims he purchased a Continental Mark IV automobile from defendant for $6,500 ($5,800 by a bank check and $700 in cash). Defendant contends that the automobile was valued at over $10,000 and has refused to either deliver the vehicle or refund the money, asserting that it was the victim of a fraud perpetrated by one of its salesmen, who has since been indicted therefor. In our opinion, in the interests of justice, a trial should be had on all the issues presented ( Bernstein v. McCormack Motor Sales, 40 A.D.2d 692; Goldstein v. McCormack Motor Sales, 41 A.D.2d 556). Martuscello, Acting P.J., Latham, Gulotta, Brennan and Benjamin, JJ., concur.