
    Morris Rosenberg, Appellant, v. Stratson Realty Co., Inc., Respondent, and Benjamin Goldberg, Defendant.
   Order granting respondent’s motion for judgment on the pleadings reversed upon the law and the facts, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. While the respondent’s answer alleges the making of a final award of compensation to appellant, there is no allegation of the payment thereof, whereas appellant’s reply alleges the rescission of said award. In these circumstances it is our opinion that appellant is not to be regarded as having made an election that is a bar to this action against respondent. Lazansky, P. J., Kapper, Scudder and Tompkins, JJ., concur; Davis, J., concurs in result, believing that the complaint is defective and should be amended to state with certainty the plaintiff’s cause of action.  