
    (October 16, 1972)
    Stanley Bernstein, Respondent, v. McCormack Motor Sales, Inc., Appellant.
   In an action for money had and received, defendant, McCormack Motor Sales, Inc., appeals (1) from an order of the Supreme Court, Rockland County, dated June 12, 1972, which denied its motion for leave to serve an amended answer and granted plaintiff’s cross motion for summary judgment, and, (2) as limited by its brief, from so much of a further order of the same court, dated June 19, 1972, as, upon reargument, adhered to the original decision. Appeal from the order dated June 12, 1972 dismissed as academic, without costs. That order was superseded by the order granting reargument. Order dated June 19, 1972 reversed insofar as appealed from, without costs; defendant’s motion for leave to serve an amended answer granted; and plaintiff’s cross motion for summary judgment denied. The amended answer must be served within 20 days after entry of the order to be made hereon. The sum of $3,450 was paid by plaintiff to defendant for the purchase of an automobile. Defendant refused to deliver the vehicle or return the money, claiming that it was the victim of fraud perpetrated by one of its salesmen. In our opinion, a trial is necessary to determine if plaintiff knew or should have known of the fraud. Latham, Acting P. J., Shapiro, Gulotta, Brennan and Benjamin, JJ., concur.  