Wanisch v. Wuertz, 140 N.Y.S. 573

Wanisch v. Wuertz

140 N.Y.S. 573 | N.Y. App. Term. | 1913

Seabury, J.

Plaintiff, an infant, sues to recover money paid to the defendant under the terms of a chattel mortgage given by plaintiff to defendant to secure the payment of $250', the amount of the purchase price of a piano sold by the defendant to the plaintiff. The money paid by plaintiff amounted to $165, which is the sum which the plaintiff seeks to recover in this action. The evidence shows that the plaintiff used the piano for three arid one-half years after it was delivered to her, and that the reasonable value of the use of the piano during that time is in excess of the amount which the plaintiff paid on account of the purchase price. There is also evidence to show that the piano had materially depreciated in value, and that the plaintiff still retains the possession of the piano, although her lawyer wrote to the defendant offering to return it if the latter would repay to the plaintiff the sum of $165. Under the circumstances disclosed, the complaint should *611have been dismissed. Rice v. Butler, 160 N. Y. 578; Gray v. Lessington, 2 Bosw. 257; Bartholomew v. Finnemore, 17 Barb. 428; 2 Kent’s Comm. 240. The only ground upon which the plaintiff asserts her claim is the privilege of infancy. This privilege, however, is to be used as a shield and not as a sword, and, as the plaintiff has received the benefit of the contract which she now seeks to repudiate, she must account for the benefit or return its equivalent. Rice v. Butler, supra,. She has not done either of these things, and, therefore, she is not entitled to retain the judgment awarded her by the court below. The case of International Text Book Co. v. Connelly, 206 N. Y. 188, upon which the respondent relies and upon which the learned court below seems to have rendered judgment in her favor, is distinguishable from the case at bar in several material respects, and especially in the fact that in that case the infant was sued to recover the balance due under an unexecuted contract, and the court held that the defendant might plead infancy as a defense.

Gerard and Bijur, JJ., concur.

Judgment reversed, with costs, and complaint dismised, with costs.