(78 Hun, 603.)

#### ALLEN v. LARDNER, et al.

(Supreme Court, General Term, Fifth Department.

June 20, 1894.)

Infancy—X bo ensartes—Dwelling House.

A dwelling house is not within the definition of “necessaries,” so as to render an infant liable on a contract for its erection.

Appeal from Niagara county court.

Action by Vincent M. Allen against Edward 0. Lardner and Ida M. Lardner, his wife, and others. From the judgment dismissing the complaint, plaintiff appeals.

Affirmed.

Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BRADLEY, JJ.

Charles M. Southworth, for appellant.

Washington H. Ransom, for respondents.

LEWIS, J.

This action was to foreclose a mortgage upon real estate in the county of Niagara, and was tried before the county judge, and he found, as facts: That the defendant Edward C. Lardner was the owner of á lot in the city of Lockport. That he was engaged to be married to the defendant Ida M., and in contemplation of such marriage, and for a home for his wife and himself after such marriage, he entered into a contract with James A. Williams and John C. Fogle to build a house on said lot for the consideration of $887. That the contractors built such house, and completed the same about April 13, 1891. That a part of the labor and materials for the construction of the house was furnished by Edward C.. Lardner. The house was worth the contract price, and was a suitable one for the home of the defendants. The bond and mortgage in suit were given by Lardner and wife to the contractors to secure them for the building of the house. The defendants Lardner were married December 7, 1891, and moved into and occupied the house from the time of its completion until the month of April, 1893, when they moved out of the house, and leased the same to another occupant. The bond and mortgage were duly assigned to the plaintiff January 4, 1892. No part of the debt has been paid, except $50. The defendants were infants at the time of the making of the contract, and of the execution and delivery of the mortgage. The defendant Ida became 21 years of age April 28, 1892, and Edward became 21 years of age November 8th of the same year. The contractors did not *214know that the defendants were minors at the time they executed the bond and mortgage. The contractors guarantied the payment of the bond and mortgage when they assigned it. Neither of the defendants in any way ratified the bond and mortgage after they arrived at the age of 21 years. The bond and mortgage were given solely to secure the debt of Edward. That no part thereof was for any indebtedness of Ida. Edward, after becoming of full age, and immediately after demand was made upon him for payment of said bond and mortgage, disaffirmed the same upon the ground of his infancy when the same was given. The court found, as conclusion of law, that the defendants were not liable upon the bond and mortgage,—that they had sufficiently disaffirmed the same,—and dismissed the complaint.

The findings of fact are sustained by the evidence. It cannot be successfully maintained that the house was a necessary for the infant. We are not aware of any decision giving so broad a construction to the word “necessaries.” They refer to supplies which are personal, either for the body, as food, clothing, lodging, or those necessary for the proper cultivation of the mind, as suitable instruction, etc. Tupper v. Caldwell, 12 Metc. (Mass.) 559; Freeman v. Bridger, 4 Jones (N. C.) 1; McCarthy v. Carter, 49 Ill. 53; West v. Gregg’s Adm’r, 1 Grant, Cas. 53; Hassard v. Rowe, 11 Barb. 22; Putnam v. Ritchie, 6 Paige, 390. To hold that a dwelling house comes within the definition of “necessaries” would make an infant liable for the purchase price of any property necessary for the cultivation of his land, or for the carrying on of any business in which he might be engaged.

it is the contention of the appellant that the defendants, in order to avail themselves of the plea of infancy, should have restored the consideration. The house was built upon a lot belonging to the defendant Edward, and a portion of the materials, and some of the work upon the building, were furnished by him. Manifestly, he could not restore the house without surrendering the possession of the land upon which it stood, and also the materials furnished by him, and the labor he had bestowed upon the house, which would have amounted to his surrendering that which he did not receive from the contractors. Such a rule, instead of protecting the acts of infants, would work to their disadvantage, and would extend their liability beyond that which would be required of them if they were adults. See Hassard v. Rowe and Putnam v. Ritchie, supra. We find no reason for disturbing the judgment. It should be affirmed, with costs of the appeal. All concur.