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Stern v. Meikleham

10 N.Y.S. 216 Court N.Y. Gen. Term Decision date 1890-05-26 English

Delivered by Landon, J.

Contents

Majority

p. 216
Stern et al. v. Meikleham.
(Supreme Court, General Term, Third Department.
May 26, 1890.)

Headnote

Infancy—Voidable Contract.
A purchase of goods by an infant for the purposes of his business, not being clearly to his disadvantage, is not void, hut only voidable.
Appeal from Albany county court.
The defendant, an infant, carried on for three years a store in Cohoes, for the sale of hats and caps. In .Tune, 1883, he purchased hats and caps of the plaintiffs, amounting, at the agreed price, to $194.25, and placed them with his stock in his store. He did not pay the plaintiffs. In December, 1883, be made a general assignment of his stock in trade, including a considerable portion of the hats and caps bought of the plaintiffs, for the benefft of creditors. The plaintiffs commenced this action before a justice of the peace, and, alleging fraud, procured an attachment, and levied upon the stock. The defendant appeared by guardian upon the trial, and alleged and proveí? his infancy.
p. 217
The plaintiffs recovered, and this appeal is from an affirmance of the judgment by the county court.
Argued before Learned, P. J., and Landon and Mayham, JJ.
Henry A. Strong, for appellant. Boyle & Fitts, for respondents.

This action was prematurely brought. The contract was not for necessaries, and therefore was not obligator)'. It was not clearly to the disadvantage of the infant, and therefore was not void. It was of an uncertain nature as to benefit or prejudice, and therefore was voidable. 2 Kent, Comm. 236; Chapin v. Shafer, 49 N. Y. 407 ; Henry v. Root, 33 N. Y. 526 ; Sparman v. Keim, 83 N. Y. 245 . But, while the defendant’s infancy continued, he was incapable of affirming or disaffirming it. He has bis election after becoming of age. Beardsley v. Hotchkiss, 96 N. Y. 201 , 211; Walsh v. Powers, 43 N. Y. 23 , and eases supra. The defendant was still an infant when this action was tried. J udgment reversed, with costs. All concur.

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