Plaintiff sued for the amount which he had paid defendant for the latter’s agreement to make a payment abroad in foreign money. He proved that defendant had told him that the transfer would be accomplished by means of a check which defendant gave him (Safian v. Irving Nat. Bank, 202 App. Div. 459, 460); that the first check was lost, whereupon defendant substituted a second, and that when that was not paid, defendant took the check back.
The action was clearly not one on the draft, but for money had and received upon rescission of the contract, which plaintiff had the right to rescind upon non-performance and which he proved was rescinded by mutual consent.
Judgment reversed and new trial ordered, with thirty dollars costs to appellant to abide the event.
All concur; present, Gut, Bijur and Mullan, JJ.