
    MARGARET FARRELL, Respondent, v. JAMES C. CORBETT, Appellant.
    
      Rescission of contract—restoration of what has been received.
    
    This action was brought by the plaintiff to restrain the defendant from enforcing a chattel mortgage which she had given to him to secure $850, the purchase-price of a lease, liquor store and the contents thereof, sold by the defendant to the plaintiff, and of which the latter had taken possession. The plaintiff claimed to rescind the contract and to have the mortgage declared void by reason of fraudulent representations of the defendant in respect to the business of the store and the rent of the premises. Held, that the plaintiff could not maintain the action, as she had failed to restore to the defendant the property received from him under the contract
    
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    
      John Flanagan and James C. Anderson, for the appellant.
    ----—, for the respondent.
    
      
       Pullman v. Alley, 53 N. Y., 637; Cobb v. Hatfield, 46 id., 533 ; Sinclair v. Neill, 8 Sup. Ct. Rep. (1 Hun), 80.
    
   Opinions by

Tappen, J., and Barnard, P. J.

Barnard, P. J., dissented.

Present — Barnard, P. J., Tappen and Gilbert, JJ.

Judgment reversed and new trial ordered at Circuit, costs to abide the event.  