
    Smith Brothers, Publishers, Inc., Appellant, v. Oliver J. Moussette, Respondent.
    (Supreme Court, Appellate Term,
    January, 1912.)
    Contracts — Contract induced by the other’s fraud — Refusal to perform.
    The innocent party to a contract induced by the other’s fraud cannot, "after discovery df the fraud, sit back and accept the benefit of the contract and refuse to perform it on his part.
    Appeal by the plaintiff from a judgment of ithe Municipal Court of- the city of Kew York, borough of Manhattan, first district, rendered in favor of the defendant.
    Hugart F. Kormán, for appellant.
    Alexander S. Bacon (Charles Podsenick, of counsel), for respondent.
   Lehman, J.

The defendant agreed in a written contract,, made in August, 1908, to pay for advertising to be inserted in a trade circular issued by the plaintiff. The contract has been fully performed by the plaintiff, but the defendant seeks to avoid payment on the ground that he was induced to sign the contract by the fraud of plaintiff's solicitor, who represented that the trade circular has a circulation of twenty thousand a month.

Fraud does not make a contract void but gives the innocent party the right to avoid the contract if he desires. The innocent party cannot, however, after discovery of the fraud, sit back and accept the benefit of the contract. In this case-it does not appear when the defendant discovered the alleged fraud,- but it- does appear that until suit was begun he never claimed that the contract was induced by fraudulent repre: sentations. It was shown that, even in the preceding month, the defendant had in writing admitted the validity of the contract. Without clear evidence as to the time the defendant discovered the fraud, it would appear that his claim of fraud was merely a method of repudiating a contract after he had received its full benefit.

Judgment should be reversed and new trial granted, with costs to appellant to abide the event. •

Seabury and "Page, JJ., concur.

Judgment reversed and new trial granted, with costs to appellant to abide event.  