Majority
p. 533Spencer v. Clarke et al. (Supreme Court, General Term, First Department. May 18, 1888.) Argued before Van Brunt, P. J„ and Bartlett and Lawrence, JJ.
Headnote
Corporations—Action by Stockholders to Cancel Mortgage Bonds—Pleading.A complaint by a stockholder of a corporation seeking to enforce a right of the corporation to have certain bonds issued by it, and the mortgage given to secure the same, canceled,' is defective on demurrer if it does not contain an offer to restore to the holders of the bonds what the corporation has received therefor.
Appeal from special term, Hew York county; Miles Beach, Justice.
Charles P. Crosby, for appellant. Edward D. Bettens, for respondents.
The plaintiff in this action is a stockholder of a corporation, and seeks to enforce a right of that corporation to have certain bonds of the
p. 534
corporation, and the mortgage given to secure the same, canceled. The corporation has received a large amount of money from the holders of said bonds upon the sale thereof. It is a familiar rule of equity that he who seeks equity must do equity; and, as it would be the greatest inequity to allow the corporation to repudiate its bonds without restoring that which it had received therefor, the plaintiff should have offered, in his bill, to restore to the holders of these bonds that which the corporation had received therefor. • This, however, he has not done, and for this reason his bill is fatally defective. The judgment appealed from should be affirmed, with costs, with leave to plaintiff to amend, upon payment of costs of appeal and demurrer.