Reiner v. Galinger

151 A.D. 711, 136 N.Y.S. 205, 1912 N.Y. App. Div. LEXIS 7824

Opinion

Miller, J.:

The action is brought to have a past due note adjudged to be usurious, illegal and void. The mere fact that one has a defense to an action at law, if one should, be brought, has never yet been held to justify an appeal to the jurisdiction of equity.- The objection is not merely that there- is an adequate remedy at law, but that there is no cause of action.

Section 373 of the General Business Law (Consol. Laws, chap. 20; Laws of 1909, chap. 25), derived from section 5 of title 3 of chapter 4 of part 2 of the Revised Statutes (1 R. S. 772) and chapter 430 of the Laws of 1837, might upon a superficial reading seem to support the plaintiff’s right to maintain a suit to have the note adjudged to be void, but the law is settled in this State to the contrary. (Minturn v. Farmers’ Loan & Trust Co., 3 N. Y. 498; Allerton v. Belden, 49 id. 373.)

The order should be reversed, with ten dollars costs and disbursements, arid the motion granted, with ten dollars costs.

Ingraham, P. J., McLaughlin, Scott, and Dowling, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.