
    Theodore Bailley, Respondent, v. Fred Graziane, Appellant.
   Appeal from a judgment of the Saratoga County Court. It was tried upon the theory that it was an action for rescission. There was no proof of a tender or offer to return. The trial judge, without an amendment of the pleadings, submitted this case to the jury on the theory of rescission. Judgment reversed on the law and facts and a new trial granted, without costs. Leave is granted to the plaintiff to apply for such an amendment of the complaint as he deems necessary. All concur.  