specially concurring.
I concur in the result obtained by the majority opinion.
I believe, however, that under the circumstances of this case the determination by the trial court that plaintiffs were entitled to proceed on their theory of damages was error. The record is totally devoid of and appellants appear to concede an absence of any fraud, misrepresentation or overreaching on the part of the sellers-respondents Johnson. On the contrary, the record *363appears clear that the appellants Simpson believed they had superior knowledge to the Johnsons regarding the tract of land and did so state at trial. The Simpsons were the initiating parties in the sale and the Johnsons appear to have been reluctant.
Under these circumstances, it appears to me inappropriate to impose on the sellers (Johnsons) a bargain different from that into which they entered; i. e., to force the Johnsons to sell the property for $4,000, rather than the $7,000 which they desired and demanded in their contract. The mistake as to the frontage of the lot was evidently mutual on the part of both parties and resulted from an error in the public records. As indicated in the majority opinion, upon discovery of the error in the description, the Johnsons offered to rescind the contract and return the money to the Simpsons. The Simpsons refused that offer. I believe at that point the Simpsons had made their election to keep the property, knowing of the deficiency in the description, and they should be deemed barred from a claim for damages resulting from no fault of the Johnsons. As indicated in Barnosky v. Petteys, 49 A.D.2d 134, 373 N.Y.S.2d 674 (1975), there was obviously no meeting of the minds of the parties to the contract and rescission under these circumstances was the more appropriate remedy.