Order, entered on March 3, 1964, granting plaintiffs' motion for leave to serve an amended complaint for the purpose of adding a cause of action in rescission to a cause of action in fraud for damages, unanimously affirmed, without costs to any party, without prejudice to defendant to interpose in his answer a defense based upon laches, or any other defense in bar or abatement. There is no doubt that plaintiffs' delayed election to rescind raises serious questions on the timeliness of the election (see Soviero Bros. Contr. Corp. v. City of New York, 286 App. Div. 435, 439-440, affd. 2 N.Y.2d 924; Restatement, Contracts, § 483, Comments and Illustrations 1, 2; 6 N.Y. Jur., Cancellation of Instruments, § 21). But these questions, because they involve mixed issues of law and fact, are best reserved for the trial. Defendant may have other defenses too, but these should not be passed upon on the motion to amend the pleadings, unless their applicability is clear (Tripp, A Guide to Motion Practice [rev. ed.], § 37, par. 6; id. 1955-1962 cum. supp., p. 70; 3 Weinstein-Korn-Miller, N Y Civ. Prac., par. 3025.14).
Concur — Botein, P.J., Breitel, Valente, Stevens and Eager, JJ.