
    Union of Soviet Socialist Republics, Appellant, v. The National City Bank of New York, Respondent.
    First Department,
    June 29, 1939.
    
      Osmond K. Fraenkel of counsel [Charles Recht, attorney], for the appellant.
    
      
      Otey McClellan of counsel [Shearman & Sterling, attorneys], for the respondent.
   Per Curiam.

The complaint sets forth sufficient facts to state a good cause of action for money had and received, if, indeed, it does not sufficiently set forth one for breach of contract.

With respect to the Statute of Limitations, we are of opinion that under the circumstances a disposition of this plea in bar should await a full adducement of all the facts.

The third ground of objection and the one on which Special Term dismissed the complaint was that the “ plaintiff has no right or capacity to sue ” and has released ” the claim. Having been recognized as a de jure government by the United Sates of America, plaintiff clearly had the right and capacity to institute the action. (Russian Republic v. Cibrario, 235 N. Y. 255, 257.) The claim was not shown to have been released.” There is nothing to indicate that the claim was extinguished by any release running to the debtor which is the proper interpretation to be given to the word release.”

While under the notice of motion the question whether plaintiff was the real party in interest because of the alleged assignment to the United States government was not technically presented, we have, nevertheless, treated the objection as though properly raised, as argued at Special Term and before us.

This objection should also await a full adducement of proof, as the record shows that there is a question of fact as to the intention of the parties to such compact with respect to claims of this nature.

It follows, therefore, that the order and judgment appealed from should be reversed, with costs to the appellant, and the motion denied, but with leave to defendant to answer within twenty days after service of a copy of the order and upon payment of such costs, with the right to the defendant in said answer, if served, to plead therein the Statute of Limitations and the alleged fact that the plaintiff is not the real party in interest.

Present — Martin, P. J., O’Malley, Townley, Cohn and Callahan, JJ.

Order and judgment unanimously reversed, with costs, and the motion denied, with leave to the defendant to answer within twenty days after service of a copy of the order with notice of entry thereof, with the right to the defendant in said answer, if served, to plead the Statute of Limitations and the alleged fact that the plaintiff is not the real party in interest, on payment of said costs.  