#### Samuel R. Dickson, App’lt, *v.*William C. Valentine *et al.,*Resp’ts.

*(New York Superior Court,*

*General Term,*

*Filed June 29, 1889.)*

1. Practice—Action to recover stock certificate—Equitable relief Code Civ. Pro. , § 1911.

An action is maintainable, under section 1911, Code Civil Procedure, in equity, by the assignee of the collateral, which the maker of an usurious-note (also assigned) gave with the note, to procure a delivery of the note and of the collateral to himself upon payment of the amount that was advanced upon the note and the collateral.

2. Tender—When not necessary.

Nor where there is an oiler in the complaint to pay, is a tender of the-amount necessary to maintain the action.

Freedman, J.

This action is brought by the plaintiff, as assignee of the collateral, which the maker of a usurious note (also assigned) gave with the note, to procure a delivery of the note and of the collateral to himself upon the payment of the amount that was advanced on the note and the-collateral by the present holder.

The collateral consists of 5,700 shares of the capital stock of the Walnut Grove Water Storage Company.

The complaint seeks equitable relief, and the joint demurrer of the present defendants is upon the ground, that the complaint upon its face does not state facts sufficient to constitute a cause of action.

The demurrer was sustained upon the ground that the plaintiff has an adequate remedy at law, namely, that he has a defense at law to any Action that may be brought on the note, and that he can recover the value of the collateral in an action of trover or for a conversion.

In coming to this conclusion, the learned judge below overlooked the fact that the right of action claimed by the complaint is expressly given by section 1911 of the Code of Civil Procedure, and that even before that, the action was maintainable on equitable principles generally.

In this note to that section, Mr. Throop shows that the section established the rule in the special case of an equit able action to obtain relief against a usurious security, in *958substantial accordance with the rulings and principles laid down in 7 Hill, 391; 26 Barb., 635; 59 id., 239; 60 id., 617; 14 N. Y., 93; 30 id., 197; 44 id., 50; 16 Hun, 307; 64 N. Y., 242, and various other cases.

Plaintiff is not bound to proceed at law. He has a right "to ask that this particular stock be returned to him. He does not want damages. Asking for a cancellation of the note is a mere incident to the real relief he wants. He may care naught for the possession of the note, but he wants this particular stock. The value of said stock may be quite small to-day, but its prospective value to him may be very great.

As the demurrer is a joint one, no discrimination requires to be made between the demurring defendants

A tender of the amount is not necessary to maintain the action. The offer in the complaint to pay is quite sufficient.

The judgments and order should be reversed, with costs, and the plaintiff should have judgment ordered in his favor upon the demurrer, with costs, with leave to the defendants to withdraw the demurrer, and to answer on payment of both bills of costs.

Truax, J.

concurs in reversing the judgment and orders, with costs. He is also of the opinion that plaintiff should have judgment ordered in his favor upon the demurrer, with costs, with leave to the defendants to withdraw demurrer and answer upon payment of both bills of costs.

Sedgwick, Ch. J.

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

The plaintiff, as transferee 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 certificate, 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 respondent claims 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 he, and the recovery of the thing given in security is subordinate and accessorial 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 *959case, and then the delivery is enforced by proceeding 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 defendant to withdraw demurrer and serve answer, upon payment of the costs of the demurrer.