BISCHOFF, J.
As we understand plaintiff's testimony it was to the effect that he sold and delivered a truck to defendant, which the latter accepted and for which he agreed to pay the sum of $150; that some time after the delivery and acceptance of the truck defendant offered to return it, and did in fact take it to the premises of L. Ullman Co., where plaintiff assumed possession and subsequently again sold the truck to Cowperthwait Co. for sixty dollars. This was all the evidence which was adduced on the trial, and a judgment for plaintiff thereon is clearly erroneous.
It was competent for the parties to rescind the sale of the truck by mutual agreement to that effect, and that they did so is indisputable from plaintiff's admission that the truck was returned to him, and that he thereupon sold it to others. After such rescission plaintiff was not entitled to the purchase money which defendant had agreed to pay, and if the latter had paid any sum on account he was entitled to return thereof. Fulton v. Met. Life Ins. Co., 4 Misc. 76.
The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.
GIEGERICH, J., concurs.
Judgment reversed, new trial ordered.