Sternlieb v. Normandie Nat. Sec. Corp.

• Decision Date: 09 January 1934
• Parties: STERNLIEB v. NORMANDIE NAT. SECURITIES CORPORATION.
• Court: New York Court of Appeals Court of Appeals

263 N.Y. 245

188 N.E. 726

STERNLIEB

v.NORMANDIE NAT. SECURITIES CORPORATION.

Court of Appeals of New York.

Jan. 9, 1934.

Action by Irving Sternlieb against the Normandie National Securities Corporation. From an order of the Appellate Division (238 App. Div. 349, 264 N. Y. S. 806), which reversed a determination of the Appellate Term, affirming an order of the Municipal Court denying plaintiff's motion to strike out a defense in defendant's answer, defendant appeals.

Affirmed.

Appeal from Supreme Court, Appellate Division, First department.

Aaron H. Marx and Frank L. Miller, both of New York City, for appellant.

Emanuel Redfield and Dalton Dwyer, both of New York City, for respondent.

Caruthers Ewing, of New York City, amicus curiae.

CRANE, Judge.

Again we have the troublesome question arising from the repudiation by a young gentleman, just under twenty-one, of his contract of purchase. On the 21st day of September, 1929, the plaintiff purchased from the defendant five shares of the capital stock of the Bank of United States and of the Bankus Corporation, for which he paid $990. In his complaint he alleges that he was under twenty-one years of age. After the stock had dropped in value until it was worthless, this young plaintiff further alleges that on the 14th day of September, 1932, he notified the defendant that he rescinded his purchase, and that he was ready to tender and return the certificates.

In its answer the defendant as a defense alleges that the plaintiff falsely and fraudulently represented and warranted to the defendant before and at the time of purchase he was over twenty-one years of age, and that the defendant relied upon these statements in parting with the stock.

The action was brought in the Municipal Court of the city of New York. The plaintiff moved to strike out the defense. The motion was denied, and affirmed, on appeal, by the Appellate Term. The Appellate Division, however, reversed this action of the two lower courts and has certified to this court the following question: ‘Is the separate and distinct defense set forth in the answer herein sufficient in law?’

That young men, nearly twenty-one years of age, actively engaged in business, can at will revoke any or all of their business transactions and obligations, thereby causing loss to innocent parties dealing with them, upon the assumption or even the assurance that they were of age, has not appealed to some courts, and has been adopted without much enthusiasm by others. This state from the earliest days has followed the common-law doctrine, adopted at a time when young men were not so actively engaged in trade and in lucrative occupations as at present. The opportunities for making a living by barter and sale were not so numerous for them as now.

At common law a male infant attains his majority when he becomes twenty-one years of age, and all unexecuted contracts made by him before that date, except for necessaries, while not absolutely void, are voidable at his election. In an action upon a contract made by an infant, he is not estopped from pleading his infancy by any representation as to his age made by him to induce another person to contract with him. International Text Book Co. v. Connelly, 206 N. Y. 188, 99 N. E. 722,42 L. R. A. (N. S.) 1115. Neither could the infant be sued for damages in tort by reason of any false representations made in inducing or procuring the contract. For his torts generally, where they have no basis in any contract relation, an infant is liable, just as any other person would be, but the doctrine is equally well settled that a matter arising ex contractu, though infected with fraud, cannot be changed into a tort, in order to charge an infant, by a change of the remedy. Collins v. Gifford, 203 N. Y. 465, 96 N. E. 721,38 L. R. A. (N. S.) 202, Ann. Cas. 1913A, 969. The only difference between an executory and an executed contract appears to be, that in the former the infant may disaffirm at any time short of the period of the statute of limitations, unless by some act he has ratified the contract, whereas in the latter, he must disaffirm within a reasonable time after becoming of age, or his silence will be considered a ratification.

This case pertains to an executed contract for the purchase of stock which the plaintiff has disaffirmed within a reasonable time. The distinction which the appellant would have us make between these well-established authorities and the present case is the fact that the infant is here the plaintiff seeking relief from the courts and should do equity before obtaining relief. That is, while as a defendant the courts will protect him from further liability on his contracts, they will not aid him in getting back money or property which will give him profit or gain through his fraudulent representations regarding his age. This was the view taken by the Appellate Division of the Second Department in Falk v. MacMasters, 197 App. Div. 357, 188 N. Y. S. 795.

This court, however, has not gone so far. The nearest approach to the point is Rice v. Butler, 160 N. Y. 578, 55 N. E. 275,47 L. R. A. 303, 73 Am. St. Rep. 703. In that case the infant was a plaintiff seeking to recover installments paid upon a bicycle which he offered to return. The court recognized the right of the infant to rescind his bargain and get back his money, insisting, however, that he must pay for the use of, or wear and tear on, the machine. The defendant was allowed to deduct this from the money paid by the infant.

The same principle was followed in Myers v. Hurley Motor Co., 273 U. S. 18, 47 S. Ct. 277, 71 L. Ed. 515, 50 A. L. R. 1181, where it was held that a contract made by an infant, induced by his fraudulent representations of his age, may be disaffirmed by him and an action maintained to recover money paid under it. However, the infant must do equity and make restitution, not only of the profits and advantages which he has received, if possible, but also for the use or deterioration of property, if it is to be returned to the defendant. In that case, a young man, twenty years of age, represented that he was twenty-four, and contracted to buy a Hudson touring car, on which he had made certain installment payments. After becoming of age, he disaffirmed his contract and demanded the return of the money paid, offering to return the car. The Supreme Court held while he was entitled to the relief asked, the defendant was also entitled to recoup out of the infant's money damages for deterioration of the car, or the value of its use. In Rice v. Butler, supra, there was no allegation or proof of false and fraudulent representations as to his age by the infant. In Myers v. Hurley Motor Co., supra, the fraud was part of the defense. We do not see how the allegation of fraud justifies any distinction of principle. It is a mere element or feature of the case. The fundamental...