The plaintiff, as administratrix, sues to recover $8,425.23 on the theory of money had and received. The action is based on plaintiff’s rescission of two annuity contracts on the ground of alleged written fraudulent representations made by defendant’s agent to the deceased annuitant, which induced him to enter into such contracts. After a third trial the jury found the representations to be true and rendered a verdict in defendant’s favor. Plaintiff appeals from the judgment entered thereon and from an order denying her motion to set-aside the verdict. On a prior appeal from a judgment of nonsuit, we reversed and ordered a new trial, holding that a question of fact was presented as to the truth or falsity of the agent’s written statement. (See 265 App. Div. 840.) The jury resolved that issue in favor of defendant and found the statement was true. We cannot say, as a matter of law, that the statement was false. Judgment unanimously affirmed, with costs. Appeal from order dismissed^ without costs. There is no such order in the record. Present — Close, P. J., Hagarty, Johnston, Lewis and Aldrich, JJ. [See post, p. 862.]