#### Baker *et al. v.*Ziegler.

*(Supreme Court, General Term, Second Department.*

May 12, 1890.)

Equity—Rescission—Pleading.

A complaint to rescind an agreement for fraud and for damages, which offers to reassign and deliver the property acquired, should be upheld even though complete restoration is impossible.

Appeal from special term, Kings county.

Action by James H. G. Baker and William F. Baker against Louis Ziegler. From a judgment dismissing their complaint the plaintiffs appeal.

Argued before Barnard, P. J., and Dykman and Pratt, JJ.

*Poor*<6 *Duffy, (Walter S. Poor,*of counsel,) for appellants. *Charles J. Patterson,*for respondent.

Barnard, P. J.

The merits of this action were not tried. The action was brought to rescind an agreement for fraud, and for damages. On the 1st December, 1888, the plaintiffs entered into an agreement with the defendant whereby the plaintiffs purchased a kindling-wood business, with the stock of wood on hand, and the lease of the premises, with the good-will of the business, for $9,000. Three thousand dollars was paid in cash, and notes given for $6,000, with a chattel mortgage as security. The plaintiffs aver that the defendant falsely, and with intent to deceive them, misrepresented the extent of the business, the amount of the profits, the quantity of bundles of kindling-wood a cord would make, and the capacity of drying room to dry wood; that therepresentation was made to defraud, and did defraud, the plaintiffs into making an agreement. The plaintiffs on the trial gave evidence tending to deny the same. As it appears that the plaintiffs had used up the stock of wood on hand, and continued the business down to the time of the trial, in February, 1889, the court dismissed the complaint because the plaintiffs had put it out of their power to make restoration, and therefore this action could not be maintained.

The appeal presents simply the question of the accuracy of this ruling. The plaintiffs were entitled to recover their damages for the fraud, even if they were not entitled to rescind because it was out of their power to restore. All the facts showing a cause of action were given; and, if the facts stated in the complaint entitled the plaintiffs to relief, they would be entitled to it without regard to the names in the complaint. *Getty*v. *Devlin,*54 N. Y. 403. The *250complaint was one to rescind, and offered to reassign and deliver the property acquired, and such a complaint was upheld even where complete restoration was impossible. The court of appeals, in *Gould*v. *Bank,*99 N. *Y.*333, 2 N. E. Rep. 16, use this language: “But that one guilty of a fraud obtained complete immunity because time or circumstance had made impossible a restoration of the parties to their original condition seemed such a reproach to the law that we added a statement of the settled and undoubted rule that, though one situated like the plaintiff may not be able to rescind, he still has ample remedies. • He may keep what he has received, and sue to recover damages for the fraud, or he may commence an action in equity to rescind, and for equitable relief, offering in his complaint to restore in case he is not entitled to retain what he has received.’ ” Under this decision, the plaintiffs were right in their action inequity. They could not of their own act rescind, for that requires restoration; but they may offer to restore, and have their complaint to rescind, when the whole controversy will be before the court. Whatever it is right that plaintiffs restore will be decreed in that action. The judgment should therefore be reversed, and a new trial granted, with costs to abide event.