Action for money had and received, brought by the plaintiff town against the defendant, one of its justices of the peace, who in the period of eleven months from January 1, 1937, to December 1, 1937, received from the town the sum of $4,230.35, being $4,055.35 for services in criminal actions and proceedings (Code Grim. Proc. § 740-a), and $175, per diem compensation, pursuant to the provisions of Town Law, section 27, subdivision 2. The plaintiff thereafter claimed that $1,230.35 of the amount thus paid was in excess of the amount lawfully payable to the defendant under the provisions of the Town Law, section 27, subdivision 2; that the limitation of $3,000 for total compensation per annum in the statute mentioned applied to the defendant; and that the latter was obligated to repay such excess to the plaintiff. The defendant moved for summary judgment under Civil Practice Rule 113. The plaintiff made a cross-motion for summary judgment in its favor for the relief demanded in the complaint. An order was duly entered (1) denying defendant’s motion, and (2) granting plaintiff’s motion, and directing *825judgment in plaintiff’s favor for such relief. Prom such order and the judgment entered thereon defendant appeals. Order on reargument and judgment unanimously affirmed, with ten dollars costs and disbursements. In our opinion, as matter of law, upon the undisputed facts, the defendant was not entitled to compensation as justice of the peace in a greater sum than $3,000 per annum. Present — Lazansky, P. J., Hagarty, Carswell, Taylor and Close, JJ. [See post, p. 834.]