Order, and judgment entered thereon, reversed upon the law, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Defendant, having elected to rescind the contract upon plaintiff’s default, must return to plaintiff the amount he paid thereon. (Muller & Co. v. Effangee Tobacco Co., 190 App. Div. 808; affd., 229 N. Y. 594.) Our former decision in 217 Appella'te Division, 755, related to an examination of defendant by plaintiff to enable him to frame his complaint and was based upon- an entirely different record. We cannot consider the record on that appeal upon the appeal now before us. We are confined solely to a consideration of the allegations of the complaint and must determine whether it states a cause of action. In our opinion it does. Young, Rich, Kapper, Hagarty and Carswell, JJ., concur.