48 N.Y.S. 152 | N.Y. App. Div. | 1897
This is ah action for the foreclosure of a mortgage. All the allegations of the complaint are appropriate to such an action only.
Apart, therefore, from the consideration that, under this complaint as it is framed, there are no allegations to support an award of any other relief than that strictly applicable to the foreclosure of a valid mortgage, it seems to be settled, that the fraudulent representations of the minor, in relation to his age, would not be the basis of any other action than one upon the case for deceit.
It is also claimed that the infant should not be allowed to repudi- ■ ate his contract without making restitution of that which he has received under it. It is true that courts of equity have gone to a considerable extent in -the direction of compelling minors who seek to avoid their contracts on the ground of infancy, to make restitution of what they have received from those who were in ignorance of the disability at the time the contract was made; but in every one of these cases it was made to appear that the infant still retained in his possession,, or under his control, that which he had received, or some part of it. If he has disposed of, spent, or even squandered the money or other consideration . receivéd, his right to dis-affirm is not limited or affected. (Kane v. Kane, 13 App. Div. 544; Green v. Green, 69 N. Y. 553.) But it is to be observed in this case that no part of the consideration for this mortgage was paid to the infant himself, although moneys were expended for the bene
The judgment of the court below was right and must be affirmed, with costs.
Van Brunt, R. J., Williams, O’Brien and Ingraham, JJ., ■concurred.
Judgment affirmed, with costs.