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Reiner v. Galinger

151 A.D. 711 Court First Department, Decision date 1912-06-28 English

Delivered by Miller, J.:

Contents

Majority

p. 711
John M. Reiner, Respondent, v. Harry H. Galinger, Appellant.
First Department,
June 28, 1912.

Headnote

Usury—equity—suit to have note declared usurious — facts not justifying appeal to equity.
The provisions of section 373 of the General Business Law, declaring usurious contracts to be void and authorizing the court to enjoin prosecution thereon and order the same to be surrendered and canceled, do not authorize a suit in equity 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, does not justify an appeal to the jurisdiction of equity.
p. 712
Appeal by the defendant, Harry H. Galinger, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 22d day of March, 1912, overruling the defendant’s demurrer to the complaint, and also from an order entered in said clerk’s office on the 29th day of March, 1912, resettling the first order.
Frank Weinstein, for the appellant.
John M. Reiner, for the respondent.

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.

Cases cited

Statutes and regulations cited