This judgment can only be sustained upon a finding that the defendant agreed to trade back the boats unconditionally. If such an agreement were in any way conditioned upon the payment of any sum by the plaintiff, not having tendered such sum the plaintiff would be in no position to demand possession of his boat. I am unable to find a particle of evidence that the minds of the parties ever *94met to make this retrade without condition. Such a claim is to my mind conclusively negatived by the evidence of the plaintiff himself wdren he saw the defendant after the claimed agreement to retrade and asked him on what conditions, the retrade would be made. There was no claim made at that time that a retrade was to be made without condition aiid there is no pretense that they at that time or thereafter ever settled upon any conditions for a retrade. This plaintiff cannot recover under the Conditional Sales statute (Lien Law [Laws of 1897, chap. 418]," § 116 et seq., as amd. by Laws of 1900, chap. 762), because the boat was taken back in August and his action was commenced upon the twenty-second of September in the same year before any right of action could accrue under that statute. The plaintiff has made a poor bargain from which the defendant was willing to release him upon conditions with which the plaintiff would not - comply. He has brought this action to rescind the contract because of the defendant’s fraud. This.he has not proven. He has been allowed to recover, however, because of a contract of rescission which to my mind is not only without proof but is clearly disproved by the evidence.
I, therefore, dissent.
Judgment and order affirmed, with costs.