
    Second Department,
    January, 1929.
    Patrick F. O’Brien, Respondent, v. Matthew F. McGunnigle and Another, as Executors, etc., of Peter O’Brien, Late of the County of Nassau, Deceased, and Another, Defendants, Impleaded with Catherine McGunnigle, Appellant.
   Order denying motion to dismiss complaint reversed upon the law, with ten dollars costs and disbursements, motion granted, with ten dollars costs, and complaint dismissed, with costs. As the infant could have avoided the contract, the alleged misrepresentation was immaterial and plaintiff was not damaged. No cause of action is stated. Lazansky, P. J., Kapper and Hagarty, JJ., concur; Scudder, J., with whom Seeger, J., concurs, dissents, with the following memorandum: Scudder, J. (dissenting). The plaintiff having alleged an action in fraud, and not an action on contract, the plea of infancy is not a good defense. The allegation of the 12th paragraph of the complaint that Catherine McGunnigle did not act in good faith but secretly planned and intended at the time of making the agreement to disaffirm and avoid the same with the secret purpose to induce plaintiff by false representations to abandon the contest of the probate without paying plaintiff $4,000, constitutes an allegation of a false representation of an existing fact. (Pease & Elliman, Inc.,v. Wegeman, 223 App. Div. 682.)  