
    Mordecai v. Pearl et al.
    
    
      (Supreme Court, General Term, First Department.
    
    March 31, 1892.)
    Infancy—Rescission of Contract—Dealing in Stocks.
    The plaintiff, an infant, deposited with defendants a sum of money as margin on stocks to be purchased by them for his account. The transactions resulted in the loss of the money, which he now seeks to recover. Defendants claim the right to retain it to satisfy an indebtedness in their favor arising out of the transactions, and that plaintiff should not recover unless he restores them to the same position in which they were prior to the contract. Held, that the infant’s right to rescind cannot be made to depend on his performing an impossibility resulting from acts which the law presumes him incapable of performing, and that the orders for the purchase and sale of stock must be regarded as having never existed. Green v. Green, 69 N. Y. 553, followed.
    Appeal from judgment on report of referee.
    Action by Robert L. Mordecai, an infant, by Allen L. Mordecai, his guardian ad litem, against Dyer Pearl, Eugene L. Mordecai, and George C. Thomas to recover money advanced as margins on stock purchased and sold. From a judgment for plaintiff, the defendants appeal.
    Affirmed.
    Argued before Van Brunt, P. J., and O’Brien and Ingraham, JJ.
    
      William D. Leonard, (George L. Rives and William D. Leonard, of counsel,) for appellants. Simpson & Werner, {A. J. Simpson, of counsel,) for respondent.
   Per Curiam.

It is conceded by the appellants that the plaintiff, an infant, had a right to recover the money deposited by him with the appellants on- his returning to the appellants all that he had received under the contract. It does not appear, however, that the infant has received anything under this contract, except the notices of the purchases and sales of the stock made by the defendants for his account. He certainly never received any of the stock alleged to have been purchased for him, nor the proceeds of the sales of any of the stock alleged to have been sold for his account; and, as the notices of purchase and sale of stock do not appear to have been of any special value, it is difficult to see that any advantage would be derived by the defendants, if he had returned or offered to return them. The plaintiff, an infant, deposited with the defendants a sum of money belonging to him, and he now seeks to recover that sum of money. The defendants claim the right to retain it to satisfy an indebtedness which they claim exists in their favor, arising out of transactions in stocks which they claim were authorized by the infant. The infant never received the stocks or their proceeds. He has received no benefit from any of the transactions made by the defendants for his account, and to ask him to return to the defendants stocks which have never been in his possession, but which have always been in the possession of the defendants, and been disposed of by the defendants, would be asking him to perform an impossibility. As was said in Green v. Green, 69 N. Y. 553: “The right to rescind is a legal right established for the protection of the infant, and to make it dependent upon performing an impossibility, which impossibility has resulted from acts which the law presumes him incapable of performing, would tend to impair the right and withdraw the protection. Both upon authority and principle, we think a restoration of the consideration could not be exacted as a condition to a rescission on the part of the defendants.” The case of Heath v. Mahoney, 12 Wkly. Dig. 404, is an express authority for the proposition that, in the consideration of the rights of the parties to this action, the orders for the purchase and sale of stock given by the infant having been effectually repudiated on the ground of infancy, they must be regarded, so far as they affect his legal rights, as though they never had any existence. We think, therefore, that the judgment was right, and should be affirmed, with costs. All concur.  