Fishman v. All American Sportwear Co.

Appellate Terms of the Supreme Court of New York

Fishman v. All American Sportwear Co.

167 Misc. 861, 4 N.Y.S.2d 48, 1938 N.Y. Misc. LEXIS 1537

CourtAppellate Terms of the Supreme Court of New York

DecidedMarch 18, 1938

StatusPublished

This text of 167 Misc. 861 (Fishman v. All American Sportwear Co.) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fishman v. All American Sportwear Co., 167 Misc. 861, 4 N.Y.S.2d 48, 1938 N.Y. Misc. LEXIS 1537 (N.Y. Ct. App. 1938).

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Opinion

Per Curiam.

The first defense is stricken out by consent. The second is insufficient, as the matters alleged are not availing against plaintiff’s claim of infancy and no benefit which were put in issue by the general denial. The action is in tort. The transaction was voidable only and not void. Until disaffirmance there was no wrong. Failure then to restore gives rise to conversion. The measure of damage is the value of the infant’s property less benefit received, if any. (Casey v. Kastel, 237 N. Y. 305; Joseph v. Schatzkin, 259 id. 241.) The third defense should not be stricken out. Even if sufficient as a general denial, it loses no efficacy when pleaded as an affirmative defense, and if not pleaded a question may arise as to whether the matters alleged can be proved. (Morgan Munitions Co. v. Studebaker Corp., 226 N. Y. 94.)

Order modified by strildng out first and second defenses, and as modified, affirmed, with ten dollars costs to appellant.

All concur. Present — Lydon, Hammer and Franken-THALER, JJ.

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Per Curiam.

The first defense is stricken out by consent. The second is insufficient, as the matters alleged are not availing against plaintiff’s claim of infancy and no benefit which were put in issue by the general denial. The action is in tort. The transaction was voidable only and not void. Until disaffirmance there was no wrong. Failure then to restore gives rise to conversion. The measure of damage is the value of the infant’s property less benefit received, if any. (Casey v. Kastel, 237 N. Y. 305; Joseph v. Schatzkin, 259 id. 241.) The third defense should not be stricken out. Even if sufficient as a general denial, it loses no efficacy when pleaded as an affirmative defense, and if not pleaded a question may arise as to whether the matters alleged can be proved. (Morgan Munitions Co. v. Studebaker Corp., 226 N. Y. 94.)

Order modified by strildng out first and second defenses, and as modified, affirmed, with ten dollars costs to appellant.

All concur. Present — Lydon, Hammer and Franken-THALER, JJ.

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Bluebook (online)

167 Misc. 861, 4 N.Y.S.2d 48, 1938 N.Y. Misc. LEXIS 1537, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fishman-v-all-american-sportwear-co-nyappterm-1938.

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