
    Alliance Assurance Company, Limited, Appellant, v. John J. McNamara, Respondent.
   Memorandum: The plaintiff seeks to recover money paid to defendant under an automobile collision insurance policy on the ground that, when it made the payment, it did so through mistake in assuming or believing that the policy was in force at the time of the accident, whereas, as alleged, the policy had expired. The complaint was dismissed at the conclusion of the plaintiff’s case on the authority of New York Life Ins. Co. v. Guttenplan (284 N. Y. 805). This case and others which follow the rule in Mutual Life Ins. Co. of New York v. Wager (27 Barb. 354) are not applicable to the facts here presented. The mistake in this case was one which did not go to the formation of the contract between the parties but was a mistake on the part of the plaintiff in believing that the policy was in force and effect when it made the payment. In such ease, the party acting under a mistake of fact may recover what was paid, provided that, by its action, it has not placed the other party in a changed position to his detriment. (Hathaway v. County of Delaware, 185 N. Y. 368; Schleider v. Maryland Cas. Co., 226 App. Div. 50, affd. 252 N. Y. 598.) In the instant case, the defendant has pleaded facts which raise an issue as to whether it would be fair and equitable to compel him to repay the money. It was error to dismiss the complaint and grant judgment to the defendant. All concur. (Appeal from a judgment dismissing the complaint in an action to recover money paid by mistake under an insurance policy.) Present — Taylor, P. J., MeCum, Kimball, Piper and Wheeler, JJ.  