
    SETH BAKER and another, Appellants, v. JOHN J. LEVER, and others, Administrators, etc., Respondents.
    
      Rermedy of purchaser when defrauded by vendor - active not required pf purchaser.
    
    When a purchaser of property is defrauded by the seller, the former is entitled, if he so elect, to rescind the contract, and to have restored to him whatever he may have paid toward the purchase-money. To entitle him to do this he must return, or offer to return, the property purchased, promptly upon the discovery of the fraud.
    A person deceived by the fraudulent, mis-statements of another, owes Mm no duty of active vigilance in the discovery of the fact that they are false.
    In this case, the death of defendant having made incompetent the only evidence plaintiff had to establish Ms case, the proper judgment was ordered by the General Term, instead of a new trial being ordered.
    Appeal by the plaintiff from a judgment entered on the report of a referee.
    
      Hamilton Ward, for appellants. HaJees <& Stevens, for respondent.
   Opinion by

Mullin, P. J.

Present — Mullin, P. J., SMith and Gilbert, JJ.

Judgment reversed, and judgment ordered that administrator's pay to plaintiffs costs of action and of appeal.  