
    Henry Stern and Charles Eichold, Resp’ts, v. John Meikleham, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed May 26, 1890.)
    
    Infants—Fraud.
    Defendant/ an infant, purchased goods of plaintiffs for his business, and thereafter made a general assignment, including a- portion of such goods.. In. an action for the purchase price, alleging fraud, Held, that the action was premature, as the contract of purchase was voidable and defendant was incapable of affirming or disaffirming it during infancy.
    Appeal from a judgment of the Albany county court
    The defendant, an infant, carried on for three years a store in Cohoes for the sale of hats and caps. In June, 1883, he purchased hats and caps of the plaintiffs amounting at the agreed, price to $194.25, and placed them with his stock in his store.
    He did not pay the plaintiffs. In December, 1883, he made-a general assignment of his stock in trade, including a considerable portion of the hats and caps bought of the plaintiffs, for the benefit, of creditors.
    The plaintiffs commenced this action- before a justice of the peace, and, alleging fraud, procured an attachment and levied upon the stock. The defendant appeared by guardian upon the' trial, and alleged and proved his infancy; the plaintiffs recovered, and this appeal is from an affirmance of the judgment by the county court.
    
      Henry A. Strong, for app’lt; Boyle & Fitts, for resp’ts.
   Landon, J.

This action was prematurely brought. The contract was not for necessaries, and, therefore, was not obligatory; it was not clearly to the disadvantage of the infant, and, therefore, was not void ; it was of an uncertain nature as to benefit or prejudice, and, therefore, was voidable. 2 Kent Com., 236; Chapin v. Shafer, 49 N. Y., 407; Henry v. Root, 33 id., 526; Sparman v. Keim, 83 id., 245. But while the defendant’s infancy continued he was incapable of affirming or disaffirming it. He has his election after becoming -of age. Beardsley v. Hotchkiss, 96 N. Y., 201, 211; Walsh v. Powers, 43 N. Y., 23, and cases-supra. The defendant was still an infant when this action was tried..

Judgment reversed, with costs.

Learned, P. J., and Mayham, J., concur.  