Judgment and order reversed upon the law and a new trial granted, costs to appellant to abide the event. The complaint states a cause of action either for damages for fraud, or for a rescission and a recovery of the sum paid on the ground of fraud. The complaint should not have been dismissed either upon the basis that it was an action for damages, or for rescission and damages, because there was proof of intentional deceit in that it was represented to plaintiff that one BuecHe had subscribed $100,000 to the new corporation, when, as a matter of fact, he had not subscribed anything. There was basis for an action for rescission at law in that it had been misrepresented to plaintiff that the proposed corporation had bought the assets of the Brooklyn concern, when, as a matter of fact, the proposed corporation had only a contract for the purchase. It may be fairly inferred that this misrepresentation was not intentional. That would not defeat an action at law based upon rescission. (Seneca Wire & Mfg. Co. v. Leach & Co., 247 N. Y. 1.) Lazansky, P. J., Young, Hagarty, Carswell and Tompkins, JJ., concur. ,