Opinion
March 21, 1928.
Fred Malcolm Wolf, for the plaintiff.
Mitchel Fruitstone, for the defendant.
Plaintiff seeks damages on the theory that defendant converted certain chattels which plaintiff's assignor had delivered to defendant as collateral security for a usurious loan. Although section 377 Gen. Bus. of the General Business Law permits the borrower to obtain the return of such security without a tender of principal or interest, it is well settled that the same privilege does not extend to an assignee of the borrower. The complaint fails to allege that the plaintiff made any tender of the principal or interest. It does not even allege that plaintiff's assignor demanded the return of the chattels and thereafter assigned his rights to the plaintiff. Since plaintiff could not maintain an action for the recovery of the property without a tender, it is difficult to comprehend how it can maintain an action to recover for the withholding of the property in the absence of an offer to repay. The motion to dismiss is accordingly granted. Order signed.