
    Max Krinsky, Plaintiff, Appellant, v. The Bank of United States, Defendant, Respondent.
    Supreme Court, Appellate Term, First Department,
    November 11, 1924.
    Banks and banking — action to recover amount paid defendant bank for agreement to make payment abroad in foreign money — check delivered to plaintiff not paid in foreign country and returned to defendant bank — plaintiff had right to rescind contract and sue for money had and received — judgment dismissing complaint reversed.
    A judgment dismissing plaintiff’s complaint, in an action to recover the amount paid to the defendant bank for its agreement to make payment abroad, in foreign money, should be reversed and a new trial ordered, where, though the check delivered to plaintiff was never paid, defendant took the check back and agreed to a rescission of the contract with the plaintiff, since plaintiff’s action clearly is one for money had and received upon effecting the rescission.
    Appeal by plaintiff from a judgment of the Municipal Court, borough of Manhattan, second district, dismissing the complaint at the close of plaintiff’s case.
    
      Frachman & Robins (Joseph H. Robins, of counsel), for the appellant.
    
      Jacobson & Pollock (H. Louis Jacobson, of counsel), for the respondent.
   Per Curiam.

Plaintiff sued for the amount which he had paid defendant for the latter’s agreement to make a payment abroad in foreign money. He proved that defendant had told him that the transfer would be accomplished by means of a check which defendant gave him (Safian v. Irving Nat. Bank, 202 App. Div. 459, 460); that the first check was lost, whereupon defendant substituted a second, and that when that was not paid, defendant took the check back.

The action was clearly not one on the draft, but for money had and received upon rescission of the contract, which plaintiff had the right to rescind upon non-performance and which he proved was rescinded by mutual consent.

Judgment reversed and new trial ordered, with thirty dollars costs to appellant to abide the event.

All concur; present, Gut, Bijur and Mullan, JJ.  