Dickson v. Valentine

57 Jones & S. 128, 24 N.Y. St. Rep. 957, 57 N.Y. Sup. Ct. 128

• Court: The Superior Court of New York City
• Decided: June 28, 1889
• Status: Published

Opinions

By the Court.—Sedgwick, Ch. J.

The action is by the transferee of a borrower in a loan, averred by the complaint to have been usurious, and as averred, certificates of shares of certain stock had been pledged by the borrower.

The plaintiff as transferree of the shares from the borrower, and of the right to cancel the act by which the security was given, brings the action to cancel, and for a delivery to him of the certificates, offering in the complaint to pay, on such delivery, the amount of the note given by the borrower.

The objection to this complaint is, that the plaintiff could recover at law what he seeks, and, therefore, that an action in equity, which the respondents claim this to be, does not lie.

The objection is not sound. An action at law does not lie to cancel a transaction. In equity, in cases like the present, it does lie, and the recovery of the thing given in security is subordinate and occasional to the principal relief. Nor does an action at law lie for the recovery of the thing pledged without the alternative of damages if it be not delivered. In equity that specific relief may be given in a proper case, and then the delivery is enforced by proceedings for contempt.

In my judgment the demurrer to the complaint should have been overruled, with leave, upon payment of costs, to withdraw the demurrer and answer over.

Judgment and order reversed with costs, and judgment for plaintiff on the demurrer, with leave to defendants to withdraw demurrer and serve answer upon payment of the costs of the demurrer.