
    Joseph Flynn, Doing Business as Flynn Brothers, Respondent, v. International Motor Company, Appellant.
    Supreme Court, Appellate Term, First Department,
    April 1, 1927.
    Contracts — breach • — ■ action for money had and received —■ plaintiff cannot recover under contract providing for forfeiture of allowance sued for where he breached agreement.
    Plaintiff, who breached his contract, cannot recover for moneys had and received thereunder, since the contract provided for the forfeiture of the very allowance for which plaintiff is suing upon breach thereof.
    Appeal by defendant from judgment of the Municipal Court, Borough of Manhattan, Seventh District, in favor of plaintiff.
    
      
      Chadbourne, Stanchfield & Levy [J. Arthur Levy of counsel], for the appellant.
    
      Hyman & Hyman [Sol. A. Hyman of counsel], for the respondent.
   Per Curiam.

Judgment reversed, with thirty dollars costs, and complaint dismissed on the merits, with costs, upon the ground that plaintiff cannot recover for moneys had and received under a contract which he had breached, particularly as the contract provided for the forfeiture of the very allowance for which plaintiff is suing, he having failed to take delivery of the second truck.

All concur; present, Lydon, Levy and Crain, JJ.  