
    Paul Goldstein, Respondent, v. McCormack Motor Sales, Inc., Appellant.
   In an action for money had and received, defendant appeals from (1) an order of the Supreme Court, Westchester County, dated May 24, 1972, which granted plaintiff’s motion for summary judgment in part, to the extent of $5,800, and severed the balance of plaintiff’s claim, and (2) from a judgment of the same court purportedly entered June 5, 1972 pursuant to said order. Appeal from judgment dismissed, without costs and without prejudice to such motion as appellant may be advised to make at Special Term with respect to the judgment. No judgment was included in the record on appeal. Order reversed, without costs, and motion denied. Plaintiff claims he purchased a Continental Mark IV automobile from defendant for $6,700 ($5,800 by a bank cashier’s check and $900 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 interest of justice, a trial should be had on all the issues presented (Bernstein v. McCormack Motor Sales, 40 A D 2d 692). Rabin, P. J., Hopkins, Martuscello, Latham and Shapiro, JJ., concur.  