HARDIN, P.J.:

This action was commenced on the 31st day of June, 1897. In the plaintiff's complaint it is alleged that on the 19th of January, 1892, in the town of Phelps, he purchased of the defendant his farm situated in that town for the agreed price of $3,000. "That the defendant, at the time of said purchase, and as an inducement thereto, stated and represented to plaintiff that said farm contained forty-four acres of land, whereas, in truth and in fact, said farm contained only forty acres of land." The complaint alleges that the defendant when he made the statement and representation as to the quantity of said land "well knew that said farm contained only forty acres of land, and made said statement and representation to plaintiff with the intent to deceive and defraud this plaintiff. That the plaintiff at the time said statement and representation was made believed the same to be true, and, not knowing to the contrary, but relying on same, made the said purchase and took his conveyance thereof from defendant and paid therefor the said sum of three thousand dollars."

Sufficient evidence was given upon the trial to warrant the jury in finding that the alleged false representations were made, and that when they were made by defendant he knew the same to be false. Upon an actual survey of the farm it was found to contain forty and fifty-four one-hundredths acres of land, or a shortage of three and forty-six one-hundredths acres.

Plaintiff gave evidence tending to show the value of the land if as represented, and also evidence tending to show the value of the land as it actually was in quantity, and claimed upon the trial to recover the difference.

In the course of the charge delivered by the learned trial judge, he said to the jury: "If you find that he did represent that there were forty-four acres when he knew there were but forty acres and a fraction, the plaintiff is entitled to such sum as will compensate him for the damages he has sustained. The damages he sustained would be just what he paid for this deficiency of 3.46 acres. He paid for just so much more land than he got, at the price which, computing the land at forty-four acres and the price $3,000, it makes per acre. Dividing the three thousand dollars by forty-four, you have the price of $68.18, and multiplying that by 3.46 amounts to $235.90. If the plaintiff is entitled to recover, he is entitled to interest upon that sum, amounting to $72.69, making in all $319.59. If you find the plaintiff is entitled to recover, that will be the amount for which you will give him a verdict."

Thereupon the counsel for the defendant excepted to the charge that if the plaintiff was entitled to recover he was entitled to recover the sum of $235.90, and interest; and the counsel for the defendant asked the court to charge "that the true rule of damages would be the difference between the value of the farm, if it contained forty-four acres, and the value of the farm, if it contained 40.54 acres." The request was refused and an exception was taken.

In Vail v. Reynolds ( 118 N.Y. 297) it is laid down that a person who is induced by fraudulent representations to purchase property has three remedies; one of them is to retain what he has received "and bring an action at law to recover the damages sustained, the measure of which is the difference between the value of the article sold and what it should be if as represented."

In Krumm v. Beach ( 96 N.Y. 398) the rule of damages was under discussion, and FINCH, J., said at page 407, "Where fraud is established, full and complete indemnity is awarded. That full indemnity may go beyond the consideration paid. The purchaser of land, as of other property, has a right to make a good bargain if he can, provided only that he deals honestly. Often the profit secured above the price paid is the sole motive for the purchase, and where there is an exchange of lands to some extent one dealing fairly may sell his own at a high price and secure another's at a low one. To the entire benefit of his bargain he is entitled. If there had been no fraud he would have had it; he should not lose it because the other party has been dishonest. The measure of damages, therefore, should be that adopted by the court below; the difference in value between the property conveyed and that which would have been conveyed had the property been as represented, and the actual contract honestly fulfilled."

A similar doctrine is alluded to in Wessels v. Carr ( 15 App. Div. 360).

We think the exceptions to which we have already referred present error requiring us to grant a new trial.

All concurred, except McLENNAN, J., dissenting, and WARD, J., not voting.

Judgment and order reversed and a new trial ordered, with costs to the appellant to abide the event.