In the view which I take of this case it is not important to determine whether or not the bicycle which the plaintiff purchased of *394the defendant is to be regarded as a necessary article, the real question being whether the former can avail herself of her infancy to perpetrate a wrong upon the latter.
It is doubtless true that the law of this State relating to contracts, made by infants is not in all respects in harmony with that of other States, and it may, perhaps, be asserted with entire propriety that the decisions of the courts of this State upon the subject are not in perfect accord with themselves'; but nevertheless there is one principle especially applicable to the facts' of this case .which has received very general recognition and which, as stated by so eminent authority as Chancellor Kent, is this: “ If an infant pays money on his contract and enjoys the benefit of it and then avoids it when he comes of age, he cannot recover back the consideration paid.” (2 Kent’s Com; *240.) (See, also, Chitty on Cont. 149-579, n. 1.)
This language is quoted with approval by Beardsley, J., in Medbury v. Watrous (7 Hill, 110), and he adds that, “the rule is otherwise where the infant has not derived any benefit from his contract, for then he may avoid it and recover back what he has paid.”
The same rule also received recognition at the hands of so able a jurist as Chief Justice Savage in M'Coy v. Huffman (8 Cow. 84), where it was said that, “Although the executory contracts of an infant are voidable by him at his election, yet if he pay money on a contract made by him, though he avoid the contract on arriving at. mature age, he cannot recover the money back, and so it was expressly adjudged .in Holmes v. Blogg (8 Taunt. 508),” and it has been repeatedly followed and adopted since. (Gray v. Lessington, 2 Bosw. 257; Bartholomew v. Finnemore, 17 Barb. 428; Crummey v. Mills, 40 Hun, 370; Wheeler & Wilson Mfg. Co. v. Jacobs, 2 Misc. Rep. 236.)
In the case last cited it was expressly held that, where an infant attempts to rescind a contract of sale by returning the property purchased, he must place the vendor in statu quo / and that he cannot return the property without making good the actual damage to it.
The cases of Gray v. Lessington and Bartholomew v. Finnemore (supra) likewise declare the same principle. 'In the latter of these cases the infant had purchased a horse and paid for.it in property which was delivered to the vendor. After retaining the horse fora *395month, during which time, by reason of its misuse by the infant, its value was greatly lessened, the infant tendered the horse back to the vendor and demanded that he should return the property which had been delivered in payment therefor; and it was held that, inasmuch as the infant had enjoyed the use of the horse and by improper usage had reduced its value, there would be no equity in permitting him to avoid his contract and reclaim his property without restoring, the consideration or its equivalent. It is said, however, that this case differs from the one at bar, in that the contract there sought to be rescinded was executed.' I can see no reason why that fact should require the application of any different rule, nor am I able to discover, after a careful reading of the case, that it exerted any particular influence upon the mind of the court; but even if such a distinction were of any importance, the contract which the plaintiff is here seeking to avoid was certainly executed to the extent of the payments which were actually made thereon (Wheeler & Wilson Mfg. Co. v. Jacobs, supra); and this being so, the distinction is obviously more imaginary than real. But, however this may be, the facts of this case justly require the application of the rule as stated by Chancellor Kent.
The plaintiff purchased the bicycle of the defendant upon the installment plan without disclosing the fact that she was an infant. The purchase price of the wheel was forty-five dollars, of which .sum fifteen dollars was paid at the time of the purchase and about ten dollars additional was thereafter paid in installments. After using the wheel for upwards of three months during the season of 1896, the plaintiff became tired of it, and then, suddenly remembering that she was an infant, offered to return it, and demanded that the money which had been paid upon the purchase price should be restored to her. .
It is undisputed that the deterioration in the value of the wheel resulting from its use for this period of time was about thirty dollars, and that its rental value during the same period would amount to about the same sum ; and, without making any return whatever for the injury done, and without offering to pay for the benefit derived from the use of the wheel, the plaintiff seeks to avoid he,r obligations by resorting to the defense of infancy. As was said in the case of Bartholomew v. Finnemore, there would be no equity in *396permitting the plaintiff in these circumstances to recover back the moneys paid npon her purchase without restoring the consideration or its equivalent.
The learned counsel for the appellant calls attention to two cases which it is claimed are in apparent hostility to the rule which has just been considered. I have examined, with some degree of care, both of these cases (one of them having been decided by this court), without discovering wherein they have any especial application to the case in hand. In one of them (Green v. Green, 69 N. Y. 556) the court was careful to state that it was not designed that the rule there adopted should be extended beyond the peculiar facts of 'that case, while in the other (Kane v. Kane, 13 App. Div. 544) the. facts, in one respect at least, were essentially different from those disclosed by the record in the case under, consideration. An infant having mortgaged his lands and squandered the money obtained upon his mortgages, after reaching his majority disaffirmed his contract, and we held that the mortgages were not liens upon the infant’s lands, and that a restitution of the moneys obtained upon the seen-' rity thereof was not a.condition precedent to disaffirmance, because — and herein lies the important distinction between that case and this—-the infant had spent his money, and thereby placed it beyond • his'power to make such restitution. In this, case, however, the plaintiff was differently situated, for the moneys which she had paid upon her contract were where they could be applied in satisfaction • of the injury done to the property which she had assumed to pur, chase, and if she is unwilling to have them thus applied, the law should make such application for her.
I am clearly of the opinion that the judgment appealed from ■ should be affirmed.
Ward, J., concurred.
Judgments of the County Court and of the Municipal Court reversed, with costs.