Peirson v. Lloyds First Mortgage Co.

234 A.D. 627

Opinion

Judgment reversed upon the law and a new trial granted, costs to appellant to abide the event. TMs is an action upon the theory of money had and received. Notwithstanding the foreclosure action by the defendant, the plaintiff in that action, there remained for disposition in tMs action the conditions specified in paragraphs 1 and 2 of plaintiffs’ Exhibit A, annexed to the complaint. There is no evidence in the record of compliance with these conditions. The foreclosure action eliminated all other questions and conditions subject to wMch the money is claimed to have been deposited with the defendant by the plaintiffs. Lazansky, P. J., Hagarty, Carswell, Tompkins and Davis, JJ., concur.