Majority
Action for money had and received (an implied contract) based upon an executed rescission of a transaction. Order denying plaintiff’s motion to dismiss the third, fourth, fifth, sixth and seventh defenses and set-offs, founded upon contract claims, affirmed, with ten dollars costs and disbursements. Even though plaintiff’s grievance is one that grows out of an illegal or wrongful act of the defendant, plaintiff has, as a matter of election of remedies, elected to sue ex contractu. Having done so he has afforded the defendant the opportunity to interpose these set-offs under section 266 of the Civil Practice Act. It is the form of the remedy availed of in the complaint that determines whether or not the subject-matter of these set-offs is properly pleaded in that form. Lazansky, P. J., Young, Hagarty, Carswell and Davis, JJ., concur.