
    John E. Merritt, Respondent, v. Bertha B. Rhodes, Appellant.
    Second Department,
    May 15, 1931.
    
      Burton C. Meighan, for the appellant.
    
      Jerome A. Peck, for the respondent.
    
      William A. Davidson, for George S. Noyes.
   Per Curiam.

We are of opinion that as the amount of money paid Noyes for broker’s commissions is the same in amount as that for which plaintiff sues and upon the identical transaction, namely, broker’s commissions on the sale of the defendant’s property, the defendant is entitled to show, if necessary, that Noyes was paid this money under a mistake of fact, and that, in the event of plaintiff’s recovering, defendant has a legal right to the money so paid to Noyes. Noyes does not question defendant’s right to sue him for the money paid to him under a mistake of fact. She should not be obliged to bring an independent action, but should be permitted to have the entire controversy determined upon the single trial.

The order, as resettled, denying the motion to bring in George S. Noyes as a party defendant-, should be reversed upon the law and the facts, without costs, and the motion granted.

Lazansky, P. J., Harper, Hagarty, Carswell and Davis, JJ.; concur.

Order, as resettled, denying motion to bring in George S. Noyes as a party defendant, reversed upon the law and the facts, without costs, and motion granted.  