Mordecai v. Pearl — 45 N.Y. St. Rep. 140

Majority

p. 140

Robert L. Mordecai, an Infant, Resp’t, v. Dyer Pearl et al., App’lts.

(Supreme Court, General Term, First Department,

Filed March 31, 1892.)

Headnote

Infancy—Rescission of contract—Stocks.

Plaintiff deposited a sum of money as margin for transactions in stocks. In an action to recover said money, it appeared that he had not received the stocks or anything except notices of their purchase and sale. Held, that as plaintiff had received no benefit from the transactions he" cóuld not be required to restore anything as a condition of maintaining the action. The orders for the purchase and sale of stock having been repudiated on the ground of infancy must be regarded, so |far as they affect his legal rights, as though they had never existed.

Appeal from judgment entered on report of referee.

W. D. Leonard, for app’lts; A. J. Simpson, for resp’t. • ,

It is conceded by the appellants that the plaintiff, an infant, had a right to recover the money deposited by him with the appellants on his returning to the appellants all that he had-received under the contract.

It does not appear, however, that the infant has ■ received anything under this contract except the notices of the purchases and sales of the stock, made by the defendants for his account He certainly never received any of the stock alleged to have been purchased for him, nor the proceeds of the sales of any of the stock alleged to have been sold for his account, and as the notices of purchase and sale of stock do not appear to have been of any special value it is difficult to see that any advantage would be derived by the defendants if he had returned or offered to return them.

The plaintiff, an infant, deposited with the defendants a sum of money belonging to him, and he now seeks to recover that sum of money. The defendants claim the right to retain it to satisfy an indebtedness which they claim exists in their favor, arising out of transactions. in stocks which they claim were authorized by the i nfant. The infant never received the stocks or their proceeds. He has received no benefit from any' of the transactions made by the defendants for his account, and to ask him to return to the defendants stocks which have never been in his possession, but which have always been in the possession of the defendants and been disposed of by the defendants, would be asking him to per-. form an impossibility.

As was said in Green v. Green, 69 N. Y., 553 : “ The right to rescind is a legal right established for the protection of the infant, and to make it dependent upon,'performing an impossibility,

p. 141

which impossibility has resulted from acts which the law pre•sumes him incapable of performing, would tend to impair the right and withdraw the protection. Both upon authority and principle we think a restoration of the consideration could not be exacted as a condition to a rescission on the part of the defendant.”

The case of Heath v. Mahoney, 12 W. Dig., 404, is an express authority for the proposition that in the consideration of the rights of the parties to this action, the orders for the purchase and sale of stock given by the infant having been effectually repudiated on the ground of infancy, they must be regarded, so far as they affect his legal rights, as though they never had any existence.

We think, therefore, that the judgment was right and should be affirmed, with costs.

Tan Brunt, P. J., O’Bbien and Ingraham, JJ., concur.