
    The Elrm Realty & Mortgage Co., Inc., Appellant, v. Max Ornstein, Respondent, Impleaded with Another, Defendant.
   Order granting motion to dismiss complaint reversed upon the law and the facts, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. We do not now decide the point presented by the respondent that the agreement was not subject to assignment. The complaint alleges performance by plaintiff and its assignor of the covenants and agreements to be performed by them. Upon the trial the true situation and the rights and interests of the parties may be shown to be such as would materially affect the assignability of the agreement. We think the complaint alleges enough to show a receipt by the individual defendant of moneys which “ properly belonged ” to plaintiff and its assignor. Kelly, P. J., Jaycox, Manning, Young and Kapper, JJ., concur.  