
    Dickerson v. Gordon.
    
      (Supreme Court, General Term, Second Department.
    
    May 18, 1889.)
    Infancy—Contbacts—Rescission.
    An. infant cannot disaffirm his contract without returning the consideration received by him, where it is not shown that the contract was not beneficial to him, that his infancy was known to the other party, nor that it was not in his power to. return the consideration.
    Appeal from Suffolk county court.
    Action by Charles Dickerson against Milton Gordon, an infant, by John L. Gordon, his guardian ad litem, for the possession of personal property and. damages for its detention. Defendant alleged that he had contracted to sell such property to plaintiff, but claimed the right to rescind such contract on the ground Of his infancy. The action was originally brought before a justice of the peace, who gave judgment for plaintiff, which was reversed by the county court on appeal, and plaintiff appeals to this court.
    Argued before Barnard, P. J., and Dykman and Pratt, JJ.
    
      Timothy M. Griffing, for appellant. Payne <6 Benjamin, for respondent.
   Pratt, J.

Upon disaffirmance by an infant of a contract it is prima faciehis duty to return the consideration he has received. To hold otherwise would make infancy “not a shield, but a sword.” In Green v. Green, 69 N. Y. 553, it affirmatively appeared that the consideration money had been wasted, and-the infant had no other property with which to repay. Under the peculiar circumstances of that case, among which were the facts that the parties were-father and son, and the infancy known to exist, it was held that the return of the consideration was not required to enable the infant to recover his land. But the court were careful to state that they did not intend to extend the rule-beyond the facts then before the court. We do not regard that case as sustaining the decision below. Here it does not appear that the contract was-not a beneficial one to the infant, nor that his infancy was known to the other party, nor that it was not in his power to return the consideration. The property sold was perishable in its nature, as compared to land, and, if the infant had not use for it, the sale apparently was for his benefit. Upon the facts shown, we think the judgment rendered before the justice of the-peace was right. Judgment of county court reversed, with costs.  