¶1I dissent. Under the evidence two questions of fact were presented which should have been submitted to the jury: (1) Whether the money in question was voluntarily paid by plaintiff to defendant. (2) If not, whether it was paid, as claimed by plaintiff, under a mutual mistake of fact. The learned justice refused to submit either 'of these questions to the jury and the defendant excepted. The exception was well taken and calls for a reversal of the judgment.
¶2Van Brunt, P. J., concurred.
¶3Judgment affirmed, with costs.