
    Samuel Sabinson, Respondent, v. Peter Herter, Appellant.
    (Supreme Court, Appellate Term,
    February, 1900.)
    Honey had and received — Scope of defense.
    Where an action is brought for money had and received, the defendant is ordinarily entitled to show any facts which establish that' the plaintiff is not, in justice and equity, entitled to recover his " demand, in full or in part.
    Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court, first district, borough of Manhattan. . " ■ - --
    
      Hirsh & Ehrhorn, for appellant.
    Louis Levy, for respondent.
   MacLean, J.

On on about April 28, 1899, the plaintiff’s assignor, one Rosenfeld, deposited forty-five dollars with the defendant, and agreed in writing to hire certain premises at 51 Delancey street, if “ the same could be made empty by law ”. The defendant failing to obtain possession of the premises, on May 6, 1899, an agreement was made whereby Rosenfeld, on his part, was to give up all claims against the premises in Delancey street and to take another house in the block, and the defendant, on his part, was to return the security paid ”. Thereafter, Rosenfeld made over his claim to the present plaintiff, who brought an action for money had and received. Claim assigned to plaintiff ”. In answer to this, the defendant, among other things, set up a counterclaim for forty dollars, upon an alleged cause of action on contract, but the learned justice below excluded all evidence of the counterclaim, on the ground that the paper of May sixth precluded all antecedent claims, which ruling was erroneous, because the paper of May sixth nowhere provided for a merger of all claims by or against the respective parties; and, in this action, the- defendant was entitled to show any facts establishing that the plaintiff was not, in justice and equity, entitled to recover the whole of his demand, or any part of it.

Freedman, P. J., and Leventritt, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  