The opinion
CULLEN, J.
This is an appeal from an order of the county court granting a new trial. The action was for conversion. The defendant pleaded a release. Plaintiff offered to prove that the release had been procured by fraud. The court excluded the proof on the ground that fraud was not set up in the pleadings, and directed a verdict for the defendant. On motion of the plaintiff, the court granted a new trial.
We think that the court erred, on the trial, in excluding the proof of fraud, and properly granted a new trial. Concededly, it erred in the ground upon which it excluded the testimony. But the defendant contended on the trial, and now contends, that the evidence should have been excluded because the consideration for the release had not been returned or offered to him before the action was begun. This contention we think erroneous. Being an infant, the plaintiff might, upon showing her inability to make restoration, rescind the release without restoration. Green v. Green, 69 N. Y. 553 . It was true that she would be bound to show affirmatively a case which entitled her to rescind without restoration; but, the court having excluded the evidence of fraud upon *584 the ground that it was not pleaded, it was not necessary for her to make further offers of proof. The ruling made, if correct, was fatal to her case. But, apart from this, she offered to prove fraud-' ulent representations as to the character and contents of the instrument she had signed,—that it was represented that it was a mere receipt. If she should establish a fraud in this respect, it would not be necessary for her to- make restoration, even if an adult. Cleary v. Light Co., 139 N. Y. 643 , 35 N. E. 206 . Order granting a new trial should be affirmed, with costs. All concur.