
    Commissioners of the State Insurance Fund, Appellants, v. Raymond Shannon, Respondent.
   Appeal from an order of the Supreme Court, entered in Albany County on August 9, 1955, denying plaintiffs’ motion for summary judgment. Plaintiffs’ first cause of action, to which the motion was addressed, seeks a recovery for money had and received. It alleges substantially these facts: that on June 17, 1939, an award of workmen’s compensation was made to defendant for permanent total disability and the State Insurance Fund was directed to pay to him two thirds of his average weekly wages, amounting to $16 per week, from the date of the award; that such payments were made until November 6, 1948; that from January 2, 1943, until October 6, 1948, defendant was employed by a different employer at wages which were greater than he was earning at the time of his injury for which the award was made; that defendant was not entitled to the compensation paid him in the amount of $4,808 during the period between January 2, 1943, and November 6, 1948, and that demand has been made for repayment. The answer denies the legal capacity of plaintiffs to sue; denies the allegation that defendant was not entitled to the money paid him pursuant to the award, denies the demand for repayment, and sets up the Statute of Limitations. We think there are issues of fact involved and that summary judgment was properly denied. Order unanimously affirmed, with $10 costs. Present — Foster, P. J., Bergan, Coon, Halpern and Zeller, JJ.  