Opinion
January 17, 1935.
Appeal from the Municipal Court of New York, Borough of Manhattan, Third District.
Milbank, Tweed, Hope Webb [ William J. Junkerman of counsel], for the appellant.
George B. Tepper, for the respondent.
The infant by his guardian ad litem sues to recover $500 upon a guaranteed mortgage certificate in that amount issued in the name of the infant and delivered to his foster mother, the theory of the action being that it was purchased by the infant or his agent and that he has elected to rescind the transaction.
The evidence shows the purchase by the infant's mother of the certificate out of money deposited by her in a savings bank to the credit of "Dora Marsak int. Leonard" (Dora being the mother and Leonard the infant), the delivery of the certificate by defendant in the name of the infant, and the receipt by the mother of interest checks payable to the order of the infant, some of which were deposited in the above account. While it is inferable that a gift of the certificate was made by the mother to the infant, and that the defendant had notice that the beneficiary was an infant, the contract or transaction was one solely between the mother and the defendant.
The infant himself, then six years old, had nothing to do with the purchase, and he was not of sufficient age or intelligence to appoint his mother as his agent in the transaction.
The judgment in favor of plaintiff cannot be upheld.
Since there was no contract or agreement between the infant and the defendant, either directly or through an agent, the rule established for the protection of minors, that an infant may rescind and repudiate his engagements and recover back the consideration parted with by him upon a purchase of property which is not a necessary, is inapplicable. The object of the rule is to secure infants from damaging themselves or their property by their own improvident acts (1 Black. Comm. 464), not from the independent acts of adults performed for the benefit of infants.
Judgment reversed, with thirty dollars costs, and judgment directed for defendant, with costs.
All concur; present, LYDON, HAMMER and FRANKENTHALER, JJ.