Motion is to dismiss the complaint for legal insufficiency.
The complaint states: Plaintiff is in the business of manufacturing and distributing phonograph records; the individual defendant is an officer of defendant corporation; prior to September 30, 1960, the infant herein, then of the age of 15½
Plaintiff admits that under the law of the State of California the infant had the absolute right to disaffirm the agreements on
The question is then posed whether defendants are liable to plaintiff for inducing the infant to exercise her legal right to disaffirm the agreements.
It is obvious that the agreements could not be enforced against the infant. The defense of infancy is a perfect defense on a contract for personal services (Aborn v. Janis, 62 Misc. 95). Since the contract is voidable and unenforcible, it could not be the basis of an action against defendants for inducing a termination of such agreement.
As stated in Adler v. Pilot Ind. (57 N.Y.S.2d 539, mod. 269 App. Div. 981): "Obviously the contract right upon which Pilot depends, viz., the alleged right to stay in possession for the balance of the assigned term, was, at best, a tenuous and voidable right. Such rights have been held to be no basis for a claim that a breach of contract had been induced."
The exercise of a legal right to terminate an agreement by a contracting party cannot be the subject of an action against a third party for procuring such alleged breach (Garcia Sugars Corp. v. New York Coffee & Sugar Exch., 7 N.Y.S.2d 532; Squibb & Sons v. Ira J. Shapiro, Inc., 64 N.Y.S.2d 368, appeal dismissed 64 N.Y.S.2d 176; Lee v. Silver, 176 Misc. 307, mod. 262 App. Div. 149, affd. 287 N.Y. 575).
At best, plaintiff's rights in the agreements in question were enforcible merely at the will of the infant and no action can arise for inducing the legal termination thereof (Harris v. Home Ind. Co., 16 Misc.2d 702; Biber Bros. News Co. v. New York Evening Post, 144 Misc. 405; Russell v. Marboro Books, 18 Misc.2d 166).
The result would be different were the gravamen of the complaint the fraud or misrepresentation of the third party in inducing such disaffirmance, as was held in Rice v. Manley (66 N.Y. 82). There the third party fraudulently misrepresented certain facts in inducing one of the contracting parties to walk away from his contractual obligations. The actionable wrong was the fraud and misrepresentation and not the act of inducement. This is not the situation herein, since nowhere in plaintiff's complaint is there an allegation of fraud or misrepresentation.
Further, it appears that under section 1308 of the Labor Code of the State of California it would be a misdemeanor in the absence of consent of the California State Labor Commissioner, for anyone to exhibit, use or employ a minor under the age of
The motion is granted, with leave to replead within 20 days after service of a copy of this order with notice of entry.