
    William S. Lawrence, Trustee, Respondent, v. Walter K. Freeman, Appellant.
    
      Action for damages for a breach of a contract — it is not a ba/r to one to recover money advanced, under it—an objection that one is in affirmance and the other in disaffirmance of the contract.
    
    Where a contract, among other things, provides that one of the parties thereto shall advance a sum of money to the other party thereto who shall organize a corporation, which sum is to be returned if the corporation is not organized within a specified period of time, the pendency of an action to recover damages for an alleged breach of the contract is not a bar to an action to recover the money advanced thereunder upon the ground that it was obtained by fraud and deceit.
    The objection that the commencement of the action for the breach of the contract constituted an affirmance thereof, which would preclude a recovery on the ground of fraud and deceit, cannot be raised for the first time upon appeal.
    Appeal by the defendant, Walter K. Freeman, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered • on the 1st day of October, 1900.
    
      Charles J. Patterson, for the appellant.
    
      Furlong & O'Connell, for the respondent.
   Per Curiam :

The action is to recover back the sum of $500, alleged to have been obtained by the defendant from the plaintiff by fraud and deceit.

The plaintiff was concededly a resident of Kalamazoo, Michigan, and the jurisdiction of the Municipal Court to try this action is based on the alleged residence of defendant in the borough of Brooklyn, city of New York. IJpon the trial plaintiff introduced in evidence the written contract between the parties, dictated and signed by defendant, in which defendant is described as “ Walter K. Freeman, of the Borough of Brooklyn, City of New York.” On the other hand, defendant gave evidence tending to explain this description as consistent with his non-residence in New York city. This evidence was to the effect that he was a resident of Saratoga Springs, and that, in dictating the contract, he left the caption for his stenographer to fill in, which she did incorrectly, and that he signed the contract without noticing her mistake. We deem the finding by the court that the defendant was a resident of New York city to be sufficiently supported by the proof. • ■ •

The parties entered into a contract,- the complete terms of which need not be set forth, but which, among other things, provided for the incorporation of a company by plaintiff, and that plaintiff should “ advance ” $500 to defendant, which money defendant agreed tu return to plaintiff if the corporation was not organized within a specified period of time.' The corporation was not organized within the time specified, and plaintiff now sues to recover back the $500, alleging that he was induced to part with the money because of defendant’s fraud and deceit.

If the trial justice believed the evidence adduced by plaintiff, there is enough proof of fraud to support the judgment in this case. While the evidence is conflicting, we see no reason to disturb the conclusion reached in the court below.

The claim is made that there is another action now pending in the Supreme Court between these parties involving the same subject-matter as this action. The action in the Supreme Court was instituted to recover damages for an alleged breach of contract, whereas this action has been instituted to recover the $500 alleged to have been obtained because of the false and fraudulent representations which appear also to have been effective in inducing the execution of the contract. The defendant, by the representations, appears to have obtained both the contract and the money — the one having no apparent relation to the other, excepting that the money is said to be advanced,” but for no purpose discoverable in the instrument itself. An action to recover damages for breach of the contract is not for the same cause of action as one to procure a restitution of the money.

Appellant’s contention that plaintiff is precluded from a recovery on the ground of fraud and deceit because of an alleged affirmance of the contract by an election of remedies, was not raised during the trial and cannot be raised for the first time here, even assuming, which we do not, that it possesses merit.

We do not deem it necessary to discuss appellant’s exceptions to rulings. They have been examined and no error is found.

The judgment should be affirmed.

All concurred.

Judgment of the Municipal Court affirmed, with costs.  