#### Frank A. Van Denburg, Plaintiff, *v.*Vedder C. Scott, Defendant.

(Supreme Court, Schenectady Special Term,

November, 1912.)

Election of remedies — notice of rescission of contract served prior to complaint — pleading — dismissal of complaint.

Where, in an action to recover damages for defendant’s fraudulent representation in the sale of a coal and ice business, the summons was served without a complaint, service on defendant at the same time of a typewritten statement signed by plaintiff stating in substance that he rescinded the contract, that he offered to restore to defendant all the personal property purchased from him reciting the same as in the bill of sale at the time of the purchase and demanding that defendant pay him the purchase price, to which statement defendant made no reply, was not such an unequivocal act on the part of plaintiff as to constitute a binding election of remedies.

When plaintiff served his complaint he was at liberty to serve one demanding relief as he should then elect; and defendant’s motion to dismiss the complaint on the ground that plaintiff had elected to rescind the contract will be denied.

Motion by defendant to dismiss the complaint on the ground that plaintiff had elected to rescind the contract as evidenced by the following’:

*“*To Vedder 0. Scott,

“ Schenectady, 1ST. V.:

“ Sir.— Do tice is hereby given to you that the undersigned vendee intends to rescind and hereby does rescind the certain contract or agreement made and entered into in writing in duplicate dated ISTov. 3rd, 1911 and consummated Jan. 18th, 1912 between said undersigned as such vendee and yourself as vendor whereby the sum of Fifty Three Hundred Dollars ($5300.) was paid and secured to you as a consideration, upon the ground that false representations were made upon your part, as an inducement to the undersigned to enter into said agreement, and part with said Fifty Three Hundred Dollars ($5300.).

“ Take further notice that demand is made upon you for *282the immediate restoration of said sum of Fifty Three Hundred Dollars ($5300.) and the collateral securing the same, and take notice that the undersigned vendee hereby tenders to you the following personal property transferred and delivered by a certain bill of sale dated Feb. 9th, 1912 as a part of said transaction of said Nov. 3rd, 1911, viz.:

“All coal sheds, barns and other buildings used in the coal, wood and ice business, said buildings being on leased land on John St., in the city of Schenectady, N. Y.; all personal property contained in said buildings, consisting of one desk, one heating stove, one Buffalo platform scale used for weighing coal, one team of horses used together, one-large horse called Bill, one large mare called Bess, one two-horse wagon with box used for delivering coal, two one-horse coal wagons, one one-horse ice wagon, one ice wagon top or cover, one double harness, three sets single harness, all horse blankets, stable implements, all coal chutes, coal bags, shovels, and all other implements used in said business; also the following contained in the office at 111 Jay St., in said city: one counter, one cash register, one roll top desk, one iron safe, one heating stove and pipe, two office chairs, one Morris chair, one wall clock, two screen ' doors, seven pictures and frames, ten letter files, one small mail scale, one Oali graph typewriter and table, one hat tree, one folding screen, advertising sign and all electric light fixtures, also all other articles included in said bill oí sale and agreement, also the lease of land on which the buildings are located from the N. Y. 0. & IT. R. B. B. Co. and the lease of the office at Til J ay St. in said city.

“ Dated Schenectady, N. Y., *March, 28th,*1912.

“ Frank A. Van Denburg.”

Nathaniel B. Spalding and Henry V. Borst, for plaintiff.

R. J. Cooper, for defendant.

Van Kirk, J.

This action was brought to recover damages for fraudulent representations in the sale by defendant to plaintiff of a coal and ice business, with certain per*283sonal property connected therewith, in Schenectady. "The verdict of the jury was taken, subject to the opinion of the court as to the question presented by defendant’s motion, as follows: The defendant moved to dismiss the complaint on the ground that the plaintiff had elected to rescind the contract and that, therefore, he could not maintain this action, which is based upon the contract. The plaintiff served a summons without a complaint. At the same time with the summons, he served a typewritten statement signed by him in which in substance he stated that he rescinded the contract, that he offered to restore to the defendant all of the personal property purchased by him, reciting the same as in the bill of sale at the time of the purchase, and demanded that the defendant pay to him the purchase price. The defendant has pleaded this paper as a rescission of the contract.

Misrepresentation by one party of a fact essentially entering into the inducement upon which the other party enters a contract is a ground on which the latter may avoid or rescind a contract. 6 English Ruling Cases, 746. There was no reservation in the contract of a right to rescind; and the plaintiff’s right to rescind depended upon the existence of false representations made by the defendant to him, which induced "him to purchase. The defendant made no reply to the paper so served upon him. At the time the complaint herein was served, the defendant was in no different position than that in which he would have been had the paper not been served. Tie has taken no action replying thereon and is in nowise prejudiced by the service thereof. The plaintiff, if false representations were made which induced him to purchase, had a right to elect his remedy, either to rescind the contract and bring an action to recover the purchase money, or bring an action to rescind, or to prosecute an action for damages. Vail v. Reynolds, 118 N. Y. 297, 302. The service of the said paper or notice was not an election which was binding on the plaintiff. In order that the election should be binding, the party must have manifested his election by an unequivocal act done with the necessary amount of knowledge as to his rights. 10 English Ruling Cases, 351.

*284In my judgment the paper or notice served was a tender or offer and demand which must either have been acted upon by the defendant or have been followed by some further act upon the part of the plaintiff before it was an election binding upon him. It was not such an unequivocal act as constitutes a binding election. When he served his complaint he was at liberty to serve a complaint demanding relief as he should then elect.

Motion denied. Enter judgment on verdict.