I think that the complaint may be sustained as for money advanced upon a contract upon, a disaffirmance or rescission thereof. (See Weaver v. Bentley, 1 Caines, 47; 2 Pars. Cont. [8th ed.] 794.) In Koerner v. Henn (8 App. Div. 604) the court, per Bradley, J., say: “It is, however, a general rule that an executory agreement, which is entire, may, upon a substantial breach by. one of the parties, be rescinded for that reason by the. .other when it can' be done in loto and the parties put in statu quo. (Weaver v. Bentley, 1 Caines, 47; Meade v. St. Louis M. Life Ins. Co., 51 How. Pr. 1; Giles v. Edwards, 7 Durn. & E. 181; Hunt v. Silk, 5 East, 448.)” In Fulton v. Metropolitan Life Ins. Co. (4 Misc. Rep. 76) .the General Term of the New York.Common Pleas, per Bischoef, J., say : “ It is well settled in principle and by authority that where there has been a total failure of consideration; or where a contract has been abandoned, 'or has been rescinded, an action will lie for money had and received to recover back any money paid, by either of the contracting parties to the- other in furtherance of the contract. (2 Whart. Cont. § 742; Raymond v. Bearnard, 12 Johns. 274; Chesapeake & Ohio Canal Co. v. Knapp, 9 Pet. 541, 566; 9 Lawy. ed. 222, 231; Lindsley v. Ferguson, 49 N. Y. 625; 3 Am. & Eng. Ency. of Law, 889.)”
The' allegation that the defendant failed to.complete and to deliver the boat cannot admit the implication that he constructed tlie boat until it was launched or was fit for launching. Hence it was not incumbent upon the plaintiff -to allege compliance with the condition under the contract that a third payment must be made when the boat was launched. The title to the boat or its materials was primarily in the defendant (Andrews v. Durant, 11 N. Y. 35), and was vested in the plaintiff perforce of the special provision of the .contract. But the plaintiff could not in the same breath dis-affirm the contract and assert such title. The defendant was not entitled to receive or to recoup the money, if any, which he had expended for his labor and. materials.- (Havens v. Patterson, 43 *241N. Y. 218, 223.) The restoration to statu quo “ does not mean' that, things should be replaced in eveiy sense as they were, as this is impassible, but that the injured party should restore whatever he has "received that he can restore and surrender any advantages he may have received.” • (1 Whart. Cont. § 285.)
I advise affirmance of the interlocutory judgment,, with costs, with leave to the defendant to plead over on payment of costs.
Hirschberg, P. J., and Miller, J., concurred; Gaynor, J., read for reversal.