
    Herman Rossow, Respondent, v. Edward Burke and George Considine, Appellants; Charles J. Kelly, Henry Lee, William G. Masarene and Daniel O’Reilly, Defendants.
    (Supreme Court, Appellate Term,
    December, 1906.)
    Former adjudication — What matters are concluded — Matters actually determined—Existence of corporation.
    Plaintiff, having entered into a written agreement with defendant, which was described therein as a corporation, to furnish certain performances of his theatrical troupe and having recovered a judgment against it for damages under said contract, alleging its corporate character, cannot thereafter recover a judgment against the associates who formed the corporation on the ground of fraud in falsely stating that such a corporation existed at the time of the contract when, in fact, its incorporation was not then complete.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury in the City Court of the city of New York and from an order denying a motion for a new trial.
    Isidor Cohn, for appellants.
    House, Grossman & Vorhaus (Louis J. Vorhaus and Charles Goldzier, of counsel), for respondent.
   Gildersleeve, J.

The plaintiff herein is the proprietor of a theatrical troupe known as “Rossow’s Midgets.” In January, 1904, as appears hy the contract annexed to the complaint, the plaintiff entered into an agreement with the Lilliputia Company, described therein as “ a corporation trading under the laws of the State of Hew York,” to furnish performances of the above-named troupe, during the summer season of 1904, in the Midget City at the amusement resort called Dreamland on Coney Island. The contract price for these performarices was $250 per week. Pursuant to this contract the Rossow Midgets went to Dreamland, on or about May 15, 1904, and gave their performance in the Midget City daily up to and including June 15, 1904, upon which date they were discharged, having received two weeks’ notice, theretofore, from the manager of the Midget City that their employment would be terminated upon that date. Hpon the trial it was stipulated that the amusement season for which plaintiff’s troupe was engaged terminated on September 25, 1904, and plaintiff seeks to recover in this action the difference between what his troupe earned between June 15, 1904, the date of his discharge, and what it would have received had it been allowed to continue the performances for the entire season, It is contended that, at the date of the inception of the contract, January 20, 1904, the Lilliputia Company Corporation did not exist. It is, however, undisputed that a certificate of incorporation of “The Lilliputia Company or the Midget City,” dated January 17, 1904, was filed in the office of the Secretary of State on January 28, 1904, and that attached to the - certificate of incorporation was the receipt of the State Treasurer, dated January 26, 1904, for fifty dollars in full of taxes on the corporate stock pursuant to law. The certificate was signed by these defendants as incorporators. It appears that no stock was ever issued and absolutely nothing further was ever done to perfect the organization. The plaintiff seeks to hold the defendants liable as partners for the reason, as he alleges in the complaint, and as his counsel claimed in his opening to the jury, which is part of the record, that the defendants, through false and fraudulent representations, wilfully misled the plaintiff into signing the contract by untruthfully representing themselves as a corporation, when in fact there was no such corporation and they had simply assumed the corporate name in order to cheat and defraud the plaintiff. It further appears that plaintiff commenced an action in the Supreme Court against the Lilliputia Company or the Midget City in June, 1904, to recover the damages claimed by him upon the same contract; that, in that action, the complaint alleged “ that at all times hereinafter mentioned the defendant was and still is a domestic corporation duly incorporated by and under the laws of the State of Hew York”; that such action was tried before Mr. Justice Leventritt and a jury and that, as a result of that action, the plaintiff recovered a judgment on June 23, 1904, against defendant, the Lilliputia Company or Midget City, for the sum of $1,150 and costs, upon which judgment execution was duly issued and returned unsatisfied In view of the above facts, it is difficult to see how the plaintiff can successfully maintain his present contention. He claims fraud on the pai’t of the defendants; that is the gravamen of his action, and that fraud consists in the defendants -having held themselves out to him as a corporation when, in fact, no such corporation existed and they were merely partners. He has already secured an adjudication that such a corporation did exist; that it entered into the contract sued on with him and he has recovered a judgment therein against the corporation for the damages claimed in this action. His present allegations of fraud are, therefore, baseless and must fall; and with them falls his present cause of action, since, as already indicated, it must rest upon fraud alone. His complaint sounds in tort and he has absolutely failed to establish the allegations of fraud set forth therein.

Fitzgebald and Davis, JJ., concur.

Judgment reversed, with costs, and complaint dismissed.  