I agree that the complaint, particularly when the ad damnum clause is considered, should be regarded as stating an action, upon a contract rescinded for fraud, to recover back that with which plaintiff parted. It is an action at law, therefore, and not in equity, where different rules might apply. In such a case, however, only such parties as actually *509received plaintiff’s property may be held to account. (Nelvan Construction Corp. v. Sanka Realty Corp., 227 App. Div. 51; Alexander City Bank v. Equitable Trust Co., 223 id. 24.)
The complaint specifically alleges that the defendant, appellant, corporation did not derive any benefit from the transaction and only sets forth that two defendants, of whom the appellant Edward V. Harman was one, and a non-appealing defendant was the other, profited.
I, therefore, vote to affirm with respect to the appellant Edward V. Harman. As to the other appellants, I dissent and vote to reverse and dismiss as to them with leave to amend.
Finch, J., concurs.
Order affirmed, with ten dollars costs and disbursements, with leave to the defendants, appellants, to answer within twenty days from service of order upon payment of said costs.