
    Louis J. Frey, Respondent, v. David M. Torrey, Appellant.
    
      Frey v. Torrey, 70 App. Div. 166, affirmed.
    (Argued May 7, 1903;
    decided June 9, 1903.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 22,1902, which affirmed a determination of the Appellate Term affirming a judgment of the Municipal Court of the city of New York in favor of plaintiff.
    The following questions were certified :
    
      First. Has a creditor of a bankrupt, who has ¡Droved his claim against the bankrupt in proceedings in bankruptcy under the act of Congress entitled “ An Act to establish a Uniform System of Bankruptcy throughout the United States,” passed July 1, 1898, as a debt due him from the bankrupt, made such an election of remedies as will preclude him, after the bankrupt’s discharge, from maintaining an action upon the same debt, which has not been paid, where he alleges and proves in order to overcome the defense of a discharge in bankruptcy, that such debt was created by the fraud of the bankrupt ?
    
      Second. Under subdivision 4 of section 1J of said act, does a discharge in bankruptcy under said act release the bankrupt from a debt which was created by his fraud, but not while acting as an officer or in any fiduciary capacity, where such debt has not been reduced to, or merged in, a judgment ?
    
      Franklin, Pierce and Robert A. B. Dayton for appellant.
    
      Walter J. Rosenstein for respondent.
   Judgment affirmed, with costs, on prevailing opinion below. Both questions certified answered in the negative.

Concur: Parker, Ch. J., Gray, O’Brien, Bartlett, Haight, Martin and Vann, JJ.  