Opinion
January 21, 1957
Present — Beldock, Acting P.J., Murphy, Ughetta, Hallinan and Kleinfeld, JJ.
In an action by an infant upon rescission of a contract for the purchase of an automobile, to recover the consideration paid, and for other relief, the appeal is from an order granting a motion to strike out an affirmative defense and counterclaim which pleads that the infant and her father, not a party to the action, misrepresented the infant to be over 21 years of age. Order modified by striking from the first ordering paragraph the words "in all respects" and by adding, in the second ordering paragraph, after the word "out", a provision granting leave to appellants to plead over in order to assert a claim for recoupment of any loss sustained from deterioration of the automobile while in respondent's possession. As so modified, order unanimously affirmed, with $10 costs and disbursements to respondent. The amended pleading is to be served within 10 days after entry of the order hereon. The affirmative defense and counterclaim were properly struck out ( Sternlieb v. Normandie Nat. Securities Corp., 263 N.Y. 245). However, respondent used the automobile for almost four months. Appellants should therefore have an opportunity to recoup any loss sustained from deterioration of the automobile while in respondent's possession ( Rice v. Butler, 160 N.Y. 578; Myers v. Hurley Motor Co., 273 U.S. 18).