
    Abraham White, Respondent, v. Edward B. Cuthbert and Others, Appellants.
    
      A note given to protect the maker against a creditor — action to compel its surrender — demurrer, that the agreement was fraudulent, that there had been a former action between the parties, upon the same cause of action, and that equity would not entertain an action to cancel a past-due note to which there was a defense at law.
    
    A complaint in an action in equity alleged that the plaintiff made and delivered to the defendant, without consideration, his note with the understanding that' an attachment was to be obtained thereon, as the plaintiff feared that a bank was about to bring an action against him; that an action was accordingly brought on the note, was tried, and the plaintiff recovered judgment to the effect that the defendant had no claim to said note; that the defendant had refused to deliver up such note to the plaintiff, and judgment was asked that the defendant be required to surrender the note. To this complaint a demurrer was interposed on the grounds: First, that the agreement was fraudulent, as to the bank; second, that the court would not entertain this second action between the parties upon the same cause of action; and, third, that a suit in equity could not be maintained for the cancellation of an overdue note to which there was a defense at law.
    
      field, that the demurrer was not frivolous.
    
      Appeal by the defendants, Edward B. Cutlibert and others, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 28th day of September, 1896, granting the plaintiff’s motion for judgment on the demurrer of the defendants as frivolous* and directing judgment for the relief demanded in the complaint.
    
      E. II. Ball, for the appellants.
    
      Franklin Bien, for the respondent.
   O’Brien, J.:

The complaint, in substance, alleges that, on March 10, 1896, the plaintiff, at the request of the defendants, made and delivered a note under ail agreement, as therein set forth, which note was without consideration; that plaintiff had had certain controversies with the Hancock Hational Bank, and that the plaintiff, being in business here and fearing trouble would arise by the bringing of an action by said bank (although plaintiff claimed that the bank had no claim against him), consulted with the defendants, and at their request the note was made and delivered and an attachment procured so as to prevent anything being done, it being agreed that, after protecting plaintiff, the defendants would return the note on demand, and in no event enter judgment thereon; that, accordingly, the note was made and delivered, and an attachment was issued and served on a bank where plaintiff had certain securities; that thereafter the Hancock Hational Bank brought an action against the plaintiff and others, in which an injunction was issued; that the injunction was vacated and set aside, and that thereafter the plaintiff demanded of defendants the return of the note under the agreement, which they refused to do, but subsequently brought an action upon such note, and that this plaintiff (who was the defendant in the action brought by these defendants against him on such note) interposed an answer; that the action was duly tried and the jury rendered a verdict in favor of this plaintiff, to the effect that these defendants had no claim to said note, and that the same was utterly null and void; that a judgment was entered accordingly and a copy served in the manner required by law, and that the time to appeal has expired and no appeal has been taken; that the plaintiff has demanded the return of the note, but that the defendants have refused to return it, and are still in- the unlawful possession thereof, and have converted the same to their own use, to the damage of this plaintiff in the sum of ■ $10,000; that plaintiff is entitled to the immediate possession of the note. And plaintiff demands that the defendants be compelled to surrender it for cancellation, and other relief.

A demurrer was interposed upon the ground that upon the face of the complaint it did not state facts sufficient to constitute a cause of action. A motion made on the pleadings for judgment on the demurrer as frivolous was granted, and from this order the appeal is taken.

To support the demurrer three grounds were urged : First, it appearing from the complaint that the parties entered into an alleged fraudulent transaction to injure the Hancock National Bank, neither law nor equity will interfere to relieve the plaintiff as against the defendants, from the consequences of his misconduct; second, that in the action between the same parties the identical note sought to be canceled was sued upon, and judgment having been rendered in favor of the plaintiff, the court will not entertain another suit between the same parties upon the same cause of action for any relief which the plaintiff might have obtained in the former action; and, third, that suit cannot be entertained in equity for the cancellation of an overdue note to which there is a perfect defense at law.

We think this position was well taken and that the demurrer was not frivolous.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Van Brunt, P. J.. Barrett, Rumsey and Ingraham, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  