
    Fourth Department,
    May, 1925.
    Joseph P. Panzica, Appellant, v. Julius Boasberg, Respondent.
    
      Pleadings — complaint — action for money had and received — complaint is sufficient — denial of allegation of mistake of fact ■raises issue precluding judgment on pleadings in plaintiff’s favor — new trial granted.
    
    Appeal from a judgment of the Supreme Court in favor of the defendant, entered in the Erie county clerk’s office on January 7, 1924, reversing a judgment of the City Court of Buffalo, and dismissing the plaintiff’s complaint, with costs.
   Per Curiam:

Although the complaint is not skillfully drawn, we think the pleadings show a sufficient cause of action for money had and received. (Clark v. West, 193 N. Y. 349, 361.) Essential to the cause of action in this ease is the allegation of mistake of fact on plaintiff’s part. Such allegation of the complaint is denied by the defendant’s answer. An issue of fact was, therefore, involved. Judgment under such circumstances could not be granted on the pleadings in plaintiff’s favor. We must consequently affirm the judgment of the Special Term so far as it reversed the judgment granted by the City Court in favor of the plaintiff upon the pleadings. As plaintiff, however, may be able to show his mistake of fact upon a new trial, we modify the judgment by striking out the provision for the dismissal of the complaint, with costs, and insert instead that a new trial be granted, with costs to the defendant to abide the event, and as so modified affirm the judgment without costs of the appeal to the Appellate Division. All concur. Present — Hubbs, P. J., Clark, Davis, Sears and Crouch, JJ. Judgment of the Special Term modified so as to provide for a new trial in the Buffalo City Court, with costs in the Special Term to the defendant to abide event, and as so modified affirmed, without costs of this appeal to either party.  