Wuest v. Cohen , 277 A.D.2d 916 ( 1950 )

Appeal from an order of the Rensselaer County Court affirming a judgment of the City Court of Troy in favor of the plaintiff, and affirming an order of the City Court of Troy denying defendant’s motion to set aside such verdict. The action was brought to recover the amount paid by the plaintiff on a contract for the purchase of a motorcycle, which had been returned to the defendant. The plaintiff disaffirmed the contract on the ground of infancy. The defendant counterclaimed for the value of the use and depreciation of the machine. The jury returned a verdict for the plaintiff in the amount of $150, and no cause of action on the counterclaim. The plaintiff, as an infant, had an absolute right to disaffirm his contract, and having returned what he received thereunder, was entitled to bring this action in the City Court of Troy to recover back what he had paid. The plaintiff was, nevertheless, obligated to account for the reasonable use or depreciation in value of the machine while in his possession. Since the plaintiff had paid $198.69 and the verdict was for $150, it would appear that the jury had evaluated the use or depreciation at $48.69. The jury was under no obligation to believe all that the defendant told them concerning value and depreciation. In view of the fact that the damage caused the machine as the result of some accident, was compromised at $85 and apparently covered by insurance, we may not say that their determination on that score was erroneous or contrary to the weight of evidence. Judgment unanimously affirmed, with costs. Present — Foster, P. J., Heffernan, Brewster, Deyo and Bergan, JJ.