
    Max M. Stone, Appellant, v. Issie Rabinowitz, Respondent.
    (Supreme Court, Appellate Term,
    November, 1904.)
    Infancy as defense in action for conversion.
    Infancy is a defense to an action for conversion because of failure to return a watch as promised. An infant cannot be held; on a mere contractural promise by merely changing the form of action to one eos delicto, in a case where no actual tortious appropriation of the property is shown.
    Appeal by the plaintiff from a judgment for the defendant, rendered by the Municipal Court of the city of Wew York, first district, borough of Manhattan. Action to recover damages for the alleged conversion of a watch and chain claimed to have been delivered to the defendant by the plaintiff’s assignor, under an agreement for the return of the articles should they not be sold and the purchase money paid. The defenses were a general denial and infancy.
    Horace London, for appellant.
    Abraham B. Schleimer, for respondent.
   Bischoff, J.

The action was in form for damages in conversion predicated of the defendant’s failure upon demand to return a watch and chain which were delivered to him upon his promise to return the articles unless they were sold to one Gold and the proceeds of sale paid to the plaintiff’s assignor. Upon sufficient evidence the court below sustained the defendant’s plea of infancy and gave judgment in his favor.

No actual tortious appropriation of the watch and chain by the defendant was attempted to be shown upon the trial. The cause of action was, therefore, concededly ex contractu, and it is elementary that an infant cannot be held upon a mere contractual promise. The form of the action “ cannot alter the nature of the transaction,” and “ though the nonperformance of that which is originally contract may be made the subject of an action in tort, the foundation of that action must still be in contract.” Sir James Mansfield in Weall v. King, 12 East, 452: We think that the fair result of the American as well as of the English cases is that an infant is liable in an action ex delicto for an actual and wilfull fraud only in cases in which the form of the action does not suppose that a contract has existed; but that where the gravamen of the fraud consists in a transaction which really originated in contract the plea of infancy is a good defense ” (Gibson v. Spear, 38 Vt. 311, 315. See also Tyler Inf. & Cov. [2d ed.] 180, and cases there collated; Bishop Koncont. Law, §§ 560, 569; Cooley Torts [2d ed.], 123; Fiero Torts, 47), and it is well settled “ that where the substantial ground of action rests on promises, the plaintiff cannot by changing the form of action make a person liable * * * on the promise.” Campbell v. Perkins, 8 K. T. 430, 440. Obviously, since we must assume that the defendant prevailed in his plea of infancy, it is needless to review the evidence as to its prepondenance on the question as to whether the watch and chain were delivered to the defendant or Gold,

Freedman, P. J., and Fitzgerald, J., concur.

Judgment affirmed, with costs.  