Danziger v. Iron Clad Realty & Trading Co.

141 N.Y.S. 593 | N.Y. App. Term. | 1913

Guy, J.

When-the plaintiff was about sixteen years of age, he entered into an agreement with the defendant, whereby he was to pay the defendant thirty-five cents per week until he had paid the sum of $100, at which time he was to receive one paid-up share of stock of the defendant. After he had paid to the defendant the sum of $67.80, and before he became of age, he refused to longer continue his payments and demanded the return of his money. This was refused, and a registered letter was sent by defendant to the plaintiff informing him that, according to the by-laws of the defendant, the money paid by the plaintiff would be forfeited unless he continued to make the stipulated payments until they amounted to the said sum of $100. About two years and four months after the plaintiff became of age, he brought this action to recover the sum paid to the defendant as aforesaid. The complaint was dismissed by the learned trial justice substantially upon the ground that he had failed to dis-affirm the contract before he became of age, and that there was no disaffirmance until this action was brought, which was not within a reasonable time after arriving at his majority. The court below said, regarding the alleged disaffirmance before the plaintiff became of age: 11 He testified that he did not ask for his money back on account of his being under age, but because he was dissatisfied, as he said, ‘ with the management.’ ” There is no doubt but at this time he demanded the return of the money paid by him and repudiated his contract. We think this was a sufficient notification to the defendant that the plaintiff intended to disaffirm his contract, and we knew of no decision which requires an infant to give any reason whatever for his refusal to longer continue to carry out an agreement concededly voidable at his pleasure either before or after arriving at majority. If he was called upon to give any reason, certainly dissatisfaction with the way the affairs of the corporation were conducted would seem to "be a sufficient one. Having disaffirmed the contract, he could bring an action, and he is entitled to recover unless the Statute of Limitations has run against his claim. At the time of the demand for the return to him of the money paid under his contract, the cause of action accrued, and then plaintiff was about eighteen years of age. He-would have six years from that time in which to bring an action, or until he was twenty-four years of age. Jagau v. Goetz, 11 Misc. Rep. 380, 385; Hyland v. N. Y. C. & H. R. R. R. Co., 24 App. Div. 417. As the plaintiff was but a few months over twenty-two years of age when this action was begun, the statute had not terminated his right of action, and it was error to dismiss the complaint.

Gerard and Page, JJ., concur.

Judgment reversed, and new trial ordered, with costs to appellant to abide event.