Summary
In Voehl v. Title Guarantee Trust Co. (155 Misc. 697; affd. without opinion, 242 App. Div. 762, and 266 N.Y. 662), chiefly relied upon by the respondent, the only question presented or decided by this court and the Court of Appeals was whether plaintiff was properly in equity or had an adequate remedy at law.
Summary of this case from E.T.C. Corp. v. Title Guarantee Trust Co.Opinion
May 2, 1934.
Jacob Lippman, for the plaintiffs.
Milbank, Tweed, Hope Webb, for the defendant.
The plaintiffs have an adequate remedy at law. There is no need for a resort to equity. In Schank v. Schuchman ( 212 N.Y. 352, at p. 357), Judge CARDOZO, writing for the court, said: "The plaintiffs are simply seeking to get back a sum of money paid under a contract, not affecting real estate, which they have elected to declare a nullity. To render that relief effective, it is not required that a court of equity should anathematize the closed transactions. The cause of action is at law, and the legal remedy is adequate."
In Seneca Wire Mfg. Co. v. Leach Co. ( 247 N.Y. 1, at p. 7), Judge CRANE, writing for the court, said: "As no equitable relief was required, it was inappropriate, if not impossible, for the plaintiff to maintain an action for rescission in equity. All it wanted was the return of its money." (See, also, Dennin v. Powers, 96 Misc. 252; affd., sub nom. Dennin v. Finucane, 176 A.D. 946; affd., 227 N.Y. 606.)
As no cause of action at law is stated, in the absence of an allegation that the plaintiffs restored, or offered to restore, the certificates and the renewals thereof prior to the commencement of the action, this motion to dismiss the complaint is granted, with leave to amend within ten days from the service of a copy of this order, with notice of entry. Order signed.