Order appealed from reversed and new trial granted, costs to abide event. Held, on the authority of Ross v. Mather (51 N. Y., 108), De Graw v. Elmore (50 Id., 1), Burnham v. Walkup (54 Id., 656), and Peck v. Root (5 Hun, 547), that the complaint sets out a cause of action for fraud and deceit, and no fraud having been proved, the plaintiff was not entitled to recover.