Wilkinson v. Fleishman

238 A.D. 858

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 15, 1933
• Status: Published

Opinion

Judgment reversed on the law, with costs, and judgment directed for the plaintiff for $188, with interest from May 31, 1930, with costs. The plaintiff, an infant, made a purchase of furniture from the defendant amounting to $298 on which at various times he paid $188. This purchase was made in contemplation of his marriage at a future date not then determined. He had no house or apartment in which to place this furniture and it was not delivered but withheld by the seller admittedly until the contract was completed by paying the balance. Shortly after the purchase the engagement was broken and the marriage never took place. It may be that if the infant had been married the furniture would, under the circumstances, have been necessaries. We do not determine that question. But with his marriage and the furnishing of a home in prospectu only, they were not necessaries to this infant at the time of the sale. The contract was executory in its nature. (Rice v. Butler, 160 N. Y. 578, 582.) The plaintiff had had no benefit thereunder and the contract, like almost all contracts of an infant, was voidable and might be rescinded. (Sparman v. Keim, 83 N. Y. 245, 250; Chapin v. Shafer, 49 id. 407, 412.) Lazansky, P. J., Young, Hagarty, Tompkins and Davis, JJ., concur.