By the Court,
Bronson, J.This seems to have been a contract for a lease, for the consideration of a gross sum of $100 to be paid at certain periods, and a rent equal to the interest on the sum of $500. The $100 was to be secured by bond and mortgage on the premises, and the plaintiff was, within three weeks, to erect such buildings as would render the property sufficient security for the payment of the rent and the mortgage debt. No time was specified for giving the lease, but the -plaintiff might have tendered the bond and mortgage and demanded a lease at the end of the three , weeks, if the buildings were then completed. It does not appear that the plaintiff has ever tendered the bond and mortgage, or demanded a lease; nor that he has paid either of the two sums of $50 which fell due while he was in possession. He entered and enjoyed the property for about one year and five months, paying no rent, and then attempted .to tear down the building for the purpose of removing the materials. The defendants arrested the destruction of the building, and resumed the possession of the property. Upon this case, and aside from the fact of infancy, there is no principle upon which the plaintiff can recover the money which he expended in erecting the building. The defendants were entitled to the possession of the property at the *425time they resumed it, and the plaintiff had no right to destroy the building. The plaintiff is all in the wrong, without any fault on the, part of the defendants. The plaintiff did not erect the building for the defendants, but for himself ; and if he had performed the contract, the building as well as the land would have been his own. He could not first break the contract, and then sue the defendants for what he had done under it for his own benefit.
Although the plaintiff was an infant, the contract was not void, but only voidable at his election. If he could make that election before arriving at full age (see Bool v. Mix, 17 Wend., 132, and cases cited), still this action can not be maintained. It has been holden that by avoiding an executory contract the infant only cancels his obligation to per-, form it. He does not acquire the right to recover back : what he had paid, or for services which he had rendered under the agreement while it remained in force. (McCoy v Huffman, 8 Cow., 84; Holmes v. Blogg, 8 Taunt., 508.) A distinction was taken in Corpe v. Overton (10 Bing., 252), where it was held, that an infant might recover the money which he had paid under an agreement from which he had derived no benefit whatever. But it was agreed that Holmes v. Blogg was rightly decided, because there the infant had had three months’ enjoyment of the property on account of which the money was paid. Here the plaintiff has had. more than a year’s enjoyment of the property to which the contract related, and if he had paid the $100 he could not recover it back. But the case is still stronger against him, for he has neither paid any thing, nor has he done any thing for the defendants under the agreement. He erected the building for hims'elf.
The plaintiff relies very confidently on the case of Millard v. Hewlett, 19 Wend., 301, as an authority in support of this action. But it is not in point. There the infant sued to recover a sum of money which he had loaned to the defendant. The defence was that the loan was made under an usurious agreement. We held that the plaintiff might avoid the agreement on the ground of infancy: and the agreement *426for usury being out of the way, there was no longer any answer to the action. That case undoubtedly proceeds upon a nice distinction; but it can not aid the plaintiff.
Motion denied.