
    Charles D. Hartman, Jr., Respondent, v. Edward W. Clucas and Others, Copartners, Doing Business under the Firm Name and Style of E. W. Clucas & Co., Appellants.
   Order reversed upon the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to plaintiff to amend the complaint within" twenty days upon payment of costs to date. While we are of the opinion that the action was properly brought in equity, we think that the admission on the part of the plaintiff that dividends were accepted and retained by him both before and after the commencement of the action with full knowledge of the fraudulent representations alleged constituted a waiver of his right to rescind the contract. No explanation to avoid the effect thereof is given. (Schank v. Schuchman, 212 N. Y. 352.) Lazansky, P. J., Young, Hagarty, Seeger and Carswell, JJ., concur.  