
    Jacques S. Cohen, an Infant, by Samson Cohen, His Guardian ad Litem, Respondent, v. Valley Stream Realty Company, Appellant.
    (Supreme Court, Appellate Term, First Department,
    May, 1915.)
    Contracts — for sale of real property — assignment of vendee of all rights under executory contract.
    A vendee having assigned all his rights under an executory contract for the purchase of real estate to his infant son who made payments on said contract, the vendor thereafter in ignorance that the son was under age made a new contract with him in relation to the same property.
    Held, that the son had a right to disaffirm the new contract but could recover only the payments made by him thereunder.
    Appeal by defendant from a judgment of the City Court of the city of New York, rendered in favor of plaintiff, after a trial before the court and a jury, and from an order denying defendant’s motion to set aside the verdict and for a new trial.
    Hirsch & Newman (Benjamin Reass, Hugo Hirsch and Emanuel Newman, of counsel), for appellant.
    Henry S. Spitz, for respondent.
   Lehman, J.

The defendant, on April 4,1910, agreed to sell to one Samson Cohen certain lots for which the said Samson Cohen agreed to pay in installments. On October 2, 1912, Samson Cohen assigned all his interest in this contract to the plaintiff, his son. The son, between October 2, 1912, and January 4, 1913, paid to the defendant $211.70 upon the contract assigned to him. On January fourth, the defendant, not knowing that the plaintiff was under the age of twenty-one, made a new contract with him which recited the receipt of all moneys paid by the plaintiff and his father prior to that date, and under that contract the plaintiff agreed to make the payments of the future installments. Thereafter the plaintiff paid to the defendant the further sum of $80 and then rescinded the contract on the ground of infancy and brought this action to recover all sums paid for the property either by the father or himself.

It seems to me that the plaintiff has clearly a right to disaffirm the contract, even though the defendant by making this contract may have released the father from his obligation under the earlier contract, and it may be impossible to restore that obligation now. The infant has always a right to disaffirm an executory contract, and inasmuch as he has received nothing under this contract he cannot be called upon to restore anything. The fact that by the making of the contract the defendant may incidentally have sustained some disadvantage is immaterial, since the plaintiff has not under the contract received any advantage.

On the other hand, it is equally clear that the plaintiff, upon disaffirming his contract, can recover only the consideration which he has paid under the contract. The trial justice therefore correctly held that the plaintiff could not recover the amounts paid by the father upon the assigned contract, though such payments were thereafter credited upon the infant’s contract. To permit such a recovery would obviously allow the plaintiff to obtain an affirmative advantage from the making of the very contract which he now seeks to disaffirm. The trial justice did, however, permit a recovery of the sum of $211.70 paid by the plaintiff upon the contract assigned to him by his father before the defendant made a new contract with the plaintiff.

It seems to me that the right to retain these payments is governed by the same considerations as govern the right to retain the payments made by the father. They were not made under the contract which the plaintiff now disaffirms but were made prior thereto, and the subsequent making of a voidable contract can give the plaintiff no right to recover prior payments. These payments were received under the father’s contract and not under any claim of right to hold the plaintiff, his assignee. The father’s contract was valid and no payments made under that contract could be recovered by the father. There was no privity of contract at that time between the defendant and the plaintiff and all rights which the plaintiff had at that time were through the father. The plaintiff merely met the father’s obligation, and if any person has taken advantage of his infancy it is his father and it is to his father that he should look for redress. The plaintiff has a right to recover only these payments made under the contract with him and which he no.w disaffirms.

Judgment should, therefore, be reduced to the sum of eighty dollars, with interest and costs, and, as so reduced, affirmed, with costs to the appellant, such costs to be set off against the judgment.

Hendrick and Cohalan, JJ., concur.

Judgment reduced, and, as so reduced, affirmed, with costs to appellant.  