
    Fourth Department,
    June, 1959
    (June 18, 1959)
    Robert E. Tompkins, Respondent, v. Ernest W. Veigel, Jr., Appellant.
   Order insofar as it grants plaintiff’s motion affirmed and insofar as it denies defendant’s motion reversed, with $10 costs and disbursements to the defendant-appellant, and motion granted, with $10 costs. Memorandum: The allegations of the complaint do not state a cause of action at law for the return of the purchase price based upon a prior rescission. There is no prior rescission alleged in the complaint. Moreover, the prayer for relief asks for a rescission. Likewise, the allegations of the complaint do not state a cause of action for damages based upon an affirmance of the contract. There is no allegation of damage nor is the prayer for relief consistent with that type of action. We conclude that the complaint states a cause of action in equity for a rescission and return of the purchase price. The prayer for relief is also consistent with that type of action. (See Vail v. Reynolds, 118 N. Y. 297, 302, 303; Goldsmith v. National Container Corp., 287 N. Y. 438, 442; 3 Carmody-Wait, New York Practice, § 34, p. 547.) All concur. (Appeal from an order of Monroe Special Term, denying defendant’s motion to strike the cause from the Trial Term Calendar and granting plaintiff's motion to strike out a certain paragraph from the complaint and ordering the cause to proceed to trial.) Present — McCurn, P. J., Kimball, Williams, Bastow and Halpern, JJ.  