
    RUDOLPH LEXOW, Appellant, v. JAMES JULIAN, Respondent.
    
      Action for fraud — party not bound to surrender what he has received, before bringing suit.
    
    Appeal from a judgment entered in favor of the defendant, upon the dismissal of the complaint at the Circuit.
    
      The court at General Term said: “The plaintiff’s cause of action, as stated in the complaint, is clearly for fraud, and not based upon a rescission of the contract. In such case the party is not bound to surrender that which he has received; he may retain it, and recover such damages as he can establish at the trial. (Allaire v. Whitney, 1 Hill, 485; Same case after second trial, entitled Whitney v. Allaire, 4 Denio, 555; The Ilian Bank v. Carver, 31 Barb., 235; JSTewbery v. Garland, id., 128; Ely v. Mumford, 47 id., 629; BordweM v. Collie, 45 N. Y., 494.) The complaint was dismissed expressly and solely upon the ground that the $500 was not tendered to the defendant before the com mencement of the action. We deem this ruling erroneous, and entitles the plaintiff to a reversal of the judgment.”
    
      Charles Wehle, for the appellant.
    
      G. L. Van Pelt, for the respondent.
   Opinion by

Ingalls, J.

Davis, P. J., and Beady, J., concurred.

Judgment reversed, new'trial ordered,'costs, to abidé'the event.  