¶1The court at Special Term in dismissing the complaint in effect held that the mistake as pleaded was one of law rather than of fact. With that conclusion we do not agree. Sufficient appears to indicate, for the present at least, that the mistake was one of fact rather than of law. After issue is joined, the court may find that the overpayments were voluntarily made under a mistake of law in which event there could not be a .recovery by plaintiff. (Payne v. Witherbee, Sherman & Co., 200 N. Y. 572, 576.) However, it cannot now be determined from the complaint, in advance of a trial, that the mistake was not one of fact.
¶2The order appealed from should be reversed and the motion denied, with leave to the defendant to answer within ten days after service of order.
¶3Present — Martin, P. J., Glennon, Dore, Cohn and Callahan, JJ.
¶4Order unanimously reversed and motion denied, with leave to the defendant to answer within ten days after service of order with notice of entry thereof.