NOONAN, J. The appellant, Margaret Funk, was formerly employed by Goold Brothers, Inc., dealers in pianos and musical supplies, and it is claimed that on October 22, 1919, she stole from her said employers three dollars and eighty cents, the proceeds of a sale. Thereafter she was arrested for petit larceny, tried in the City Court of Buffalo on November 28, 1919, and, after several adjournments granted for the purpose of permitting the probation officers to investigate the case, and also to determine what was the best disposition to be made of it, she was found guilty on December 30, 1919, and placed on probation for one year and ordered to make restitution in the sum of $1,500.

At the trial she was represented by able counsel, and after she was placed on probation she made some payments to the City Court, but on January 30, 1920, she employed her present attorney, who appealed her case to this court, and he asks for a reversal of the judgment of conviction on the ground that evidence was improperly admitted by the trial court, that it is contrary to the weight of the evidence, and that the order to make restitution be vacated because the City Court had no power to make it.

I understand, although it is not a part of the record, that between the day of the trial and the day of sentence, Goold Brothers, Inc., after a careful investigation, determined that the appellant had taken at least $1,500 in various petit larcenies extending over a considerable period of time, and that this fact and also the fact that the appellant promised to make the restitution if she did not receive a prison sentence, were both taken into consideration by the trial judge in disposing of the case.

Under ordinary circumstances the judgment of conviction would be affirmed because it is warranted by the evidence, but the City Court had no power to make restitution for more than three dollars and eighty cents under section 483, subdivision 2, of the Code of Crim

inal Procedure, which provides that the court can order the defendant "to make restitution or reparation to the aggrieved parties in an amount to be fixed by the court, not to exceed the actual losses or damages caused by his offense." I take it that the words "his offense" mean only the offense for which the defendant is on trial before the court, and cannot be stretched to cover similar offenses committed by the defendant against the same party or various parties. I know that this construction of the statute greatly hampers its usefulness in disposing of cases of similar character in the City Court, but I cannot make the statute other than it is.

Under all the circumstances I think that the proper thing to do is to reverse the judgment of conviction, and send the case back to the City Court for a new trial, pursuant to the provisions of section 768 of the Code of Criminal Procedure, and an order may be entered accordingly.

Judgment reversed.

NICHOLAS SPARANDERA, an Infant, by GABRIELE SPARANDERA, his Guardian ad Litem, Plaintiff, v. Staten ISLAND GARAGE, INC., Defendant.

(Municipal Court of the City of New York, Borough of Richmond, June, 1921.)

Contracts - infant on disaffirmance of executed contract for purchase of an automobile must restore what he received under the contract restoration only in part must account for reasonable use of vehicle including deterioration in value an alleged assignment of all rights of the seller under the contract and chattel mortgage given on the sale, unsupported by proof, must fail complaint dismissed.

ACTION by infant for return of money paid on account of purchase of automobile.

Prosper R. Ferrari, for plaintiff.

Joseph B. Handy, for defendant.

WEDEMEYER, J. Plaintiff seeks to recover in this action the amount of moneys paid by him, upon a certain contract entered into between the parties hereto, on September 29, 1920, wherein plaintiff, then an infant over twenty years of age, agreed to purchase a certain motor vehicle known as a Ford runabout, together with certain accessories appurtenant thereto.

The contract price, including war tax, freight and fuel, was $524.88, and the amount of the accessories purchased, including charges for fire and theft insurance, covering said automobile for one year, was $181.34, or a total purchase price of $706.22. On this last mentioned amount plaintiff paid to the defendant the sum of $235.46 on September 29, 1920, the date of the delivery of automobile and accessories in question; and for the balance of said purchase price, amounting to $470.76, plaintiff executed and delivered to defendant his twelve certain promissory notes in writing, each for the sum of $39.23, the payment of which was secured by a chattel mortgage given by plaintiff to defendant upon the said automobile.

Subsequently at the office of the Commonwealth Finance Corporation, at 100 Broadway, borough of Manhattan, plaintiff paid three monthly instalments of $39.23 each, during the latter part of the months of October, November and December, 1920, in payments of notes then due, aggregating the sum of $117.69. The amount, time and place of each payment made by the plaintiff were in accordance with his paper writing evidenced by defendant's exhibit C.

It is conceded that plaintiff purchased from and paid the sum of $5 to the defendant for a new horn. for his automobile. The total payments made by plaintiff under his contract, including the horn,

amount to $358.15. The automobile from the date of its purchase on September 29, 1920, to February 28, 1921, a period of five months, was in the possession of plaintiff. By the undisputed allegations contained in the complaint it appears that prior to the commencement of this action plaintiff rescinded the contract under consideration and demanded the return of the amount of moneys paid on account thereof, and tendered the said automobile to defendant, which demand and tender were refused by the latter; and it further appears in the complaint, undenied by answer, that at the time of the disaffirmance of the contract "plaintiff duly notified defendant that at the time of the making of said contract of purchase that he was an infant and that he elected to rescind the said alleged contract and that he deemed the same void."

Defendant resists plaintiff's claim for a recovery herein, as disclosed by its answer, upon the following grounds:

(a) That plaintiff is estopped from pleading his infancy on the ground of his written representation made to the defendant that he was twenty-one years of age;

(b) That an infant cannot recover upon an executed contract; and

(c) That at the time plaintiff tendered the automobile to defendant it had deteriorated in value, and was not of the same value as when sold to the plaintiff; and that the reasonable value of the use of said property from the time of the sale thereof on September 29, 1920, to the tender made as aforesaid, was $500, an amount which is in excess of the sum paid by plaintiff on the contract in question.

With reference to the first alleged defense urged by the defendant that the plaintiff is estopped from pleading his infancy because he represented in a certain written or printed statement, given for the pur

pose of securing credit in connection with plaintiff's purchase of the property aforesaid from the defendant, that he was twenty-one years of age when he signed it, cannot be supported in the case at bar. The doctrine of estoppel is rarely if ever applied to infants. The action at bar is on contract, not in tort. There is no allegation or suggestion of false representation or fraud in the complaint, except that the defendant in its answer sets forth that the plaintiff represented in writing his age as being twenty-one years. In the case of International Text Book Company v. Connelly, 206 N. Y. 188, at foot of page 196, Judge Vann, writing the opinion for the court, stated, which applies with equal force in this case, as follows: "While an infant is liable for his torts the action must rest solely on the wrong committed by him. The complaint in this action rests wholly on the written contract which is set forth at length," and the fact that the written statement contains the representation as to age" with neither allegation nor proof that it was made with intent to defraud, does not fix the character of the action as one ex delicto.' (Sparman v. Keim, 83 N. Y. 245.) It is well settled in this state that in an action upon a contract made by an infant he is not estopped from pleading his infancy by any representation as to his age made by him to induce another person to contract with him. (Studwell v. Shapter, 54 N. Y. 249; N. Y. Building Loan Banking Co. v. Fisher, 23 App. Div. 363; Brown v. McCune, 5 Sandf. Super. Ct. 224.)"

The remaining questions, presented by the defendant in his answer, will be considered together. The courts of this state have held that a contract such as in this case in its entirety must be held to be executory; for, under its terms, payments were to mature in the future. In so far as the payments made are concerned the contract was in a sense executed for