#### HENRY N. CRUMMEY, Appellant, *v.*GEORGE H. MILLS and Others, Respondents.

*Infant*— of *ter attaining Ids majority lie cannot recover property deposited as a margin-under an agreement for the purchase of*stocks, *which agreement was made and' broken by him while an infant.*

The plaintiff, when under twenty-one years of age, deposited with the defendants, who were hankers and brokers, twenty-five shares of Western Union Telegraph stock which belonged to his mother as a mai'gizi for the puz’chase of more stock of the same company. Such purchases were made under the direction of the-plaintiff, and when the stock declined in the market he was required to make additional deposits of money to keep up his margin; and he did so from time to time, but finally failing to comply with such demands his stock was all sold out by the defendants and he was left indebted to them in an amount exceeding $1,100. The plaintiff, upon reaching his majority, repudiated the transaction and brought this action to recover the property and money deposited and paid to the defendants.

*Held,*that the action could not be maintained. (Barnard, P. J., dissenting.)

Appeal by tbe plaintiff from a judgment and order, entered at tbe Kings Circuit dismissing tbe plaintiff’s complaint.

*James P.*Judge, for tbe appellant.

*W. S. Logan,*for the respondents.

Dykman, J.:

When tbe plaintiff was under twenty-one years of age, be deposited witli tbe defendants, who were bankers and brokers,, twenty-five shares of Western Union Telegraph stock which belonged to bis mother, as a margin for tbe purchase of more stock of the same company. Such purchases were made under *the*direction of tbe plaintiff, and when tbe stock declined in tbe market be was required to make additional deposits of money to keep up bis margin, and be did so from time to time, but finally failed to comply with such demands, and his stock was all sold out by tbe defendants, and be was left indebted to them over $1,100. Tbe plaintiff has now reached bis majority, and repudiates tbe transaction and seeks to recover tbe property and money deposited with tbe defendants during tbe entire transaction.

Tbe cause came on for trial at tbe circuit and resulted' in a *371dismissal of tbe complaint at tbe close of tbe plaintiff’s case, and be has appealed from tbe judgment. Tbe repudiation of tbe transaction must proceed on the theory of an executory contract, because such contracts made by a minor may be disaffirmed at bis majority, but no such privilege has ever been extended to a contract which has been executed and performed. No rule of law has ever permitted a minor to avoid a contract of which be has enjoyed the benefit, and recover back the consideration paid on tbe attainment of bis majority. *(Medbury*v. *Watrous,*7 Hill, 110).

The transactions between tbe plaintiff and the defendants were *j*executed. Tbe plaintiff purchased tbe stock through tbe defendants and paid for tbe same, and they belonged to him, subject it may be to a lien in favor of tbe defendants, but tbe title was vested in him ; be furnished money and stock to tbe defendants to be employed in a specified manner, and they followed his directions.. In the purchase of stock they were bis agents and obeyed bis instructions. Tbe original deposit of stock and tbe subsequent payment of money were in pursuance of a contract, and in tbe course of its execution and performance. So that all be has done has been in tbe full execution of bis contract, and be cannot recover for money paid or property furnished for such purpose.

The case of *Green*v. *Green*(69 N. Y., 556) was a peculiar case dependent on its own facts, and .the decision was not intended to modify tbe rule of law applicable to executed contracts. “ If an infant advances money on a voidable contract which be afterwards rescinds, be cannot recover this money back, because it is lost to him by bis own act; and tbe privilege of infancy does not extend so far as to restore this money unless it was obtained from him by fraud.” (1 Pars, on Cont., p. 322.)

Tbe judgment should be affirmed, with costs.

PRAtt, J., concurred : Barnard, P. J., dissented.

Judgment and order denying new trial affirmed, with costs.