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App. Div.]

Second Department, July, 1913.

other rules or instructions it was incumbent upon defendant to establish that fact. Respondent further argues that plaintiff was guilty of contributory negligence in that on this particular occasion he did not make sufficient endeavor to find out the operator of this machine and to notify him that he, the plaintiff, was about to do some repair work on it. The testimony of the plaintiff shows that the usual operator of the machine was not about the machine when he began the work of adjusting the ropes. He testified that he was working on the machine about twenty minutes before the accident happened. He likewise testified that in all his previous work of repairing ropes in these machines he had sought out the operator and notified the latter that he was about to begin work of repairs on the machine. From the fact that he gave no notice of this kind to the operator on this occasion, the respondent argues that plaintiff was guilty of contributory negligence as matter of law. This claim seems to me far-fetched. It appears quite sufficiently that the operator was not at the machine when plaintiff came to work upon it. This machine had been stopped for some time, awaiting these repairs. In any event, the question of contributory negligence under these circumstances would have been for the jury and not for the court as a matter of law. The judgment should be reversed and a new trial granted, costs to abide the event. Rich, J., concurred.

CLARENCE H. VENNER, Respondent, v. AUGUST BELMONT, Appellant. Appeal from an order of the Supreme Court, entered in the Nassau county clerk's office on the 16th day of April, 1913.

Order affirmed, with ten dollars costs and disbursements, on opinion of Mr. Justice Blackmar at Special Term. Jenks, P. J., Carr, Rich, Stapleton and Putnam, JJ., concurred.

The following is the opinion of the Special Term:

BLACKMAR, J.: This is not a difficult and extraordinary case within the meaning of the section of the Code* authorizing an extra allowance. It is an ordinary action for a libel. The rules of law governing it are simple and elementary. It is true that the defendant has expended large sums of money in investigating the past life of the plaintiff, seeking matter to plead in justification, and has succeeded in discovering enough to enable him to set forth in his answer a biography of the plaintiff stretching over 118 printed pages. The presumption should be that when one publishes libelous matter he already possesses information justifying the charge. The fact that an expensive and elaborate investigation is necessary to secure evidence in justification, while it may indicate that the defense is difficult, does not make the case a difficult one. Motion to discontinue on payment of taxable costs granted. Motion for an extra allowance denied.

*Code Civ. Proc. § 3253.-[REP.

Second Department, July, 1913.

[Vol. 158.

FRANK B. LOWN, Respondent, v. JOHN J. SPOON, Appellant, Impleaded with SUNNYFIELD NURSERY COMPANY, Defendant.

Infant-contract — right to rescind purchase of stock - practice staying action at law pending decision in suit in

injunction equity.

Appeal from an order of the Supreme Court, entered in the Dutchess county clerk's office on the 28th day of March, 1913.

Order affirmed, with ten dollars costs and disbursements, upon the opinion of Mr. Justice Morschauser at Special Term. Jenks, P. J., Carr, Rich, Stapleton and Putnam, JJ., concurred.

The following is the opinion delivered at Special Term:

MORSCHAUSER, J.: The preliminary objections raised by the defendant must be overruled. (Code Civ. Proc. § 416; Daly v. Amberg, 126 N. Y. 490.) The plaintiff claims that the defendant Spoon made a contract with him and that the plaintiff duly performed such contract upon his part and that the defendant Spoon only partially performed and later violated the contract upon his part. Plaintiff alleges that defendant was of full age and defendant Spoon, while not denying the fact of entering into a contract with the plaintiff, merely says that he was a minor at the time of making the contract, and, therefore, he should receive back from the corporation the amount he paid for the stock of the corporation. The purchase of the stock of the corporation was only a part performance on the part of the defendant Spoon of the contract which the plaintiff alleged he entered into with the defendant. The purchase of the stock was not the result of a dealing between the corporation and the defendant Spoon, but was an act on the part of the defendant Spoon which he had agreed with the plaintiff to perform as part and parcel of an agreement with the plaintiff. The validity of the purchase of this stock must be judged by the agreement made between the defendant Spoon and the plaintiff and their respective acts thereunder. Under all the circumstances justice requires a full and complete investigation of the rights of the parties concerned, and in order that such full and complete investigation may be had, it is necessary that a court of equity should intervene and that is all that plaintiff asks in this case. The cases cited by the learned counsel for the defendant do not apply to the question. No rule of law has ever permitted an infant to avoid a contract, of which he has enjoyed the benefit, and recover back the consideration paid on the attainment of his majority. (Crummey v. Mills, 40 Hun, 370; Medbury v. Watrous, 7 Hill, 110.) It has become the settled law in this State that the privilege of infancy may be used as a shield to protect the infant and not as a sword to inflict injuries upon another. If an infant has had the benefit of a contract sought to be rescinded by him, he must account for the benefit, or return its equivalent. (Rice v. Butler, 160 N. Y. 578; Mutual Milk & Cream Company v. Prigge, 112 App. Div. 652.) Kent, in his Commentaries (Vol. 2, p. 240), says: "If an infant pays money on his contract and enjoys the benefit of it

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App. Div.]

Second Department, July, 1913.

and then avoids it when he comes of age, he cannot recover back the consideration paid. On the other hand, if he avoids an executed contract when he comes of age, on the ground of infancy, he must restore the consideration which he had received. The privilege of infancy is to be used as a shield and not as a sword. He cannot have the benefit of the contract on one side without returning the equivalent on the other." Equity prohibits the undue advantage which would accrue to an infant and the great wrong which might be done to one innocently dealing with such infant, if such infant, especially if of sufficient age to appreciate the value of a contract, were permitted to recover back all that he had parted with and obtain all the advantages gained. "The jurisdiction of a court of equity by action to restrain proceedings in actions pending in courts of law, should be sparingly exercised, and only when other remedies are inadequate and the equities invoking its jurisdiction are apparent and strong. There is no hard and fast rule about it, and every case must depend largely upon its own circumstances." (Norfork & N. B. H. Co. v. Arnold, 143 N. Y. 268, 269.) It appears from the affidavit of the defendant Spoon that the contract which he seeks to rescind was actually made with the plaintiff herein. It also appears that the defendant has instituted an action in New York county against the Sunnyfield Nursery Company, a corporation, which he alleges is in fact the plaintiff. In this action he seeks to rescind a contract made for the purchase of the stock of the corporation and to recover back the sum of $1,000 paid for the purchase thereof. The sole ground upon which he seeks a rescission of this contract is, that at the time of making the contract he was an infant. The real party in interest, so far as relates to pecuniary loss by reason of any recovery by the defendant Spoon in this action against the corporation, is the plaintiff in this action and this appears from the affidavit of the defendant, who insists that the corporation is in fact the plaintiff and it is not disputed. This action is for injunctive relief and there does not appear to be any adequate remedy at law enabling the plaintiff to present his side of the question to the court, except in an action in equity wherein all the parties interested in the controversy may be heard, and substantial and complete justice be done. In order to thus proceed it is important that the defendant be enjoined during the pendency of this equitable action from prosecuting the action which he has commenced in New York county and which does not include all the parties interested so as to enable the court in that action to give consideration to all the matters which in justice should be considered. The motion is not for a stay, but for a temporary injunction, so that all the matters can be disposed of. In justice and in equity I believe that the injunction should be continued. Ordered accordingly.

In the Matter of Mary M. Gray, an Alleged Incompetent.- Motion for stay pending appeal denied, without costs. Present - Burr, Carr, Rich, Stapleton and Putnam, JJ.

Rose Schwind, as Administratrix, etc., of William P. Schwind, Deceased, Appellant, v. The Long Island Railroad Company, Respondent. - Motion

Second Department, July, 1913.

[Vol. 158.

for leave to appeal to the Court of Appeals denied. Present - Burr, Carr, Rich, Stapleton and Putnam, JJ.

Bridget Allen, Respondent, v. The Long Island Railroad Company, Appellant.-Judgment and order reversed and new trial granted, costs to abide the event, upon the ground that the verdict is excessive, unless within twenty days plaintiff stipulate to reduce the recovery of damages to the sum of $5,000, in which case the judgment, as so modified, and the order are unanimously affirmed, without costs. Present-Jenks, P. J.,

Burr, Thomas, Carr and Stapleton, JJ.

George Alfred Annable, as a Stockholder, etc., Respondent, v. Associated Builders Catalog Company, Appellant, and Others, Defendants.- Order affirmed, with ten dollars costs and disbursements. No opinion. Jenks, P. J., Burr, Carr, Rich and Putnam, JJ., concurred.

Belmont Powell Holding Company, Respondent, v. Serial Building Loan and Savings Institution and Others, Respondents.* The People of the State of New York, Appellant.— Order, so far as appealed from, reversed, with ten dollars costs and disbursements. An issue having been raised by the answer of the defendants The People of the State of New York, such issue became triable according to the provisions of the Code of Civil Procedure and the General Rules of Practice. The defendants The People of the State of New York were entitled to the notice of trial provided by the Code of Civil Procedure, † and the action should be placed upon the calendar of the Special Term for the trial of issues of fact and law. Jenks, P. J., Carr, Rich, Stapleton and Putnam, JJ., concurred.

Esther Bernstein, Respondent, v. Isaac Friend, Appellant.— Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to plaintiff to serve an amended complaint within twenty days on payment of ten dollars costs. No opinion. Jenks, P. J., Carr, Rich, Stapleton and Putnam, JJ., concurred.

Richard Brazier, Respondent, v. Mary Gastel and Frederick Gastel, Appellants.- Judgment and order of the County Court of Kings county unanimously affirmed, with costs. No opinion. Present Jenks, P. J., Burr, Thomas, Rich and Stapleton, JJ.

Bernard Britt, Respondent, v. The City of New York, Appellant.— Judgment and order reversed and new trial granted, costs to abide the event, on the ground that the case went to the jury upon the theory that the proximate cause of the injury was the failure of the master to furnish a safe place to work. There was no evidence that plaintiff was engaged at the time of the collapse in using the defective structure as a place to work. The evidence is that he was aiding in the repair of a defective structure. Jenks, P. J., Burr and Stapleton, JJ., concurred; Thomas and Carr, JJ., dissented.

* Action brought pursuant to article 12 of the Real Property Law (Consol. Laws, chap. 50 [Laws of 1909, chap. 52], as amd. by Laws of 1910, chap. 627).- [REP.

See Code Civ. Proc. § 977. — [REP.

App. Div.]

Second Department, July, 1913.

Warren S. Burt and John Thompson, as Executors, etc., Plaintiffs, v. Mary Ann Harris, Respondent, Impleaded with The Methodist Episcopal Church Home of The City of New York, Appellant.-Judgment affirmed, with costs. No opinion. Jenks, P. J., Carr, Rich, Stapleton and Putnam, concurred.

JJ.,

Conrad Christensen, Appellant, v. Abendroth Brothers, Respondent.— Motion for new trial upon exceptions directed to be heard in the first instance by the Appellate Division denied and judgment unanimously directed dismissing the complaint, with costs. No opinion. Present — Jenks, P. J., Burr, Thomas, Rich and Stapleton, JJ.

Commissioner of Public Charities of the City of New York, on Complaint of Estelle Damsky, Respondent, v. Julius Cohen, Appellant.- Order of the Court of Special Sessions affirmed, with costs. No opinion. Jenks, P. J., Carr, Rich, Stapleton and Putnam, JJ., concurred.

Corbin Cabinet Lock Company, Appellant, v. Joshua T. Butler, Respondent.- Judgment affirmed, with costs. No opinion. Jenks, P. J., Burr, Carr and Putnam, JJ., concurred; Thomas, J., dissented.

William Dillon, Respondent, v. Frank E. Xavier, Appellant.- Judgment and order affirmed, with costs. No opinion. Jenks, P. J., Thomas, Carr and Putnam, JJ., concurred; Burr, J., dissented.

Frank Doudera, as Trustee in Bankruptcy, etc., Appellant, v. Edward C. Boyce and Mary L. Boyce, Respondents.- Judgment affirmed, with costs. No opinion. Jenks, P. J., Thomas, Carr and Stapleton, JJ., concurred; Burr, J., not voting.

William F. Dreyer, Respondent, v. McCormack Real Estate Company, Appellant. Order affirmed, with costs. No opinion. Jenks, P. J., Burr, Carr and Putnam, JJ., concurred; Thomas, J., dissented on authority of O'Beirne v. Lloyd (43 N. Y. 248).

Joseph F. Eastmond, Respondent, v. Roy H. McNaught, Appellant, and Another, Defendant.- Judgment of May twentieth and order reversed, and new trial granted, costs to abide the event. No opinion. Jenks, P. J., Carr, Rich, Stapleton and Putnam, JJ., concurred.

Joseph F. Eastmond, Appellant and Respondent, v. Roy H. McNaught, Respondent and Appellant, and Another, Defendant.- Defendants' motion for a new trial, disclosing the methods by which Clarke's deposition before trial was obtained, established that its admission had been clearly error, since he was in no sense an adverse party. Therefore, a new trial was a matter of right, the granting of which should be without conditions. Order of August 7, 1912, modified accordingly, so as to grant defendants' motion, without terms, with costs of this appeal. Jenks, P. J., Carr, Rich, Stapleton and Putnam, JJ., concurred.

Clinton M. Flint and Carrie S. Flint, Respondents, v. Freeport Railroad Company, Appellant.- Order affirmed, with ten dollars costs and disbursements. No opinion. Jenks, P. J., Carr, Rich, Stapleton and Putnam, JJ., concurred.

Ethel Carey Grant, an Infant, etc., Appellant, v. Henry D. Carey, and Others. Individually and as Administrators, etc.. Appellants, and

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