
    Warnock Uniform Company, Respondent, v. John D. Garifalos and Others, Defendants, Impleaded with Morris Silver and Others, Appellants.
    First Department,
    December 30, 1915.
    Equity — cancellation of notes obtained by fraud—when resort may be had to equity, although there is an adequate remedy at law.
    Where notes have been procured by fraud, and instead of being used for a specific purpose for which they were obtained, have been converted to other uses and transferred to others who took them with knowledge of the fraud, or with such information as to put them upon inquiry, the maker may resort to a court of equity to have the notes canceled, not only to avoid a multiplicity of suits, but to preserve the evidence establishing that they were not legal instruments in the possession of the defendants.
    The general rule that where one has an adequate remedy at law, he cannot resort to a court of equity, and if he does so it will refuse to exeicise its equitable powers, is not of universal application.
    Although the existence of a defense, the risk of losing evidence, or the apprehension of a multiplicity of suits may not, any of them separately, be a sufficient ground for restraining suits at law upon or for a decree for the cancellation of written instruments, especially where proof of extrinsic facts is not necessary to establish the defense, yet when all these elements are combined, and extrinsic proof is necessary to establish the defense, a proper cause for equitable relief is established. Ingraham, P. J., and Dowling, J., dissented, with opinion.
    Appeal by the defendants, Morris Silver and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 7th day of June, 1915, upon the decision of the court after a trial at the New York Special Term. Defendant Silver also appeals, as stated in his notice of appeal, from the decision upon which the judgment was entered.
    
      William E. McReynolds, for the appellant Silver.
    
      William J. Lippmann, for the appellant Krakower.
    
      Virginius Victor Zipris, for the appellant Kobre.
    
      Henry S. Dottenheim, for the respondent.
   McLaughlin, J.:

Action in equity to perpetually enjoin the defendants from negotiating certain promissory notes of the plaintiff, or prosecuting actions to recover thereon and to cancel such notes on the ground of fraud.

In March, 1914, one Garifalos obtained from the plaintiff fifteen promissory notes, aggregating $6,000, on the representation that he had a line of credit at the Public Bank and the Second National Bank in the city of New York, where he could have the same discounted. It was agreed between plaintiff and Garifalos that when the notes were discounted he would pay over to the plaintiff one-half of the proceeds of each note, retaining the other half for his compensation in the transaction. It was further agreed that Garifalos should return to the plaintiff, within ten days, all notes which he did not use, and should pay one-half of the amount of all notes which were discounted when they became due. Garifalos’ statement as to his credit at the hanks referred to was false and the notes were never discounted by him as agreed, but instead were transferred to third parties, from whom the plaintiff received no consideration whatever. The plaintiff succeeded in getting hack some of the notes and then brought this action to have the remaining ones which are in the possession of the defendants adjudged void and canceled. The defendants Silver, Krakower and Kobre (the appellants) appeared and interposed an answer, alleging as a defense to the action that they were bona fide holders for value. At the trial, plaintiff introduced evidence of Garifalos’ fraud, his negotiation of the notes, and rested. The appellants then endeavored to prove that they acquired their respective titles for a valuable consideration, in due course (Neg. Inst. Law [Consol. Laws, chap. 38; Laws of 1909, chap. 43], § 98), and in this they completely failed. At the close of the trial the court found, and we all agree there is sufficient evidence to sustain the finding, that the appellants acquired their respective notes with notice of their fraudulent inception, or under such circumstances as would put them on notice of such fact, and directed that they be surrendered for cancellation. It is from a judgment to this effect that the appeal is taken.

The appellants contend that thé action cannot he maintained in equity for the reason that under the allegations of the complaint, and proof, the plaintiff has an adequate remedy at law to any action which might be brought to enforce collection of the notes. As a general rule, where one has an adequate remedy at law, he cannot resort to a court of equity, and if he does so, it will refuse to exercise its equitable powers. This rule, however, is not of universal application. It has its exceptions, and I think the facts here bring this case within them. The existence of a defense, the risk of losing evidence, or the apprehension of a multiplicity of suits, may not, any one of them separately, be a sufficient ground for restraining suits at law upon, or decreeing the cancellation of written instruments, especially where proof of extrinsic facts is not necessary to establish the defense, yet when all these elements are combined and extrinsic proof is necessary to establish the defense, a proper case for equitable relief is established. (Town of Springport v. Teutonia Savings Bank, 75 N. Y. 397; De Kalb Holding Co. v. Madison Theatre Co., 165 App. Div. 202; Metler’s Admrs. v. Metler, 18 N. J. Eq. 270.) The notes held by the defendants were obtained by Garifalos from the plaintiff by a fraud practiced upon it. They were obtained for a specific purpose, but, instead of using them for that purpose, he converted them to his own use. So far as Garifalos was concerned it was as though he had stolen them. Each of the appellants took them with knowledge of that fact or with such information as put them upon inquiry, and had such inquiry been made, it would at once have been ascertained that Garifalos had no right to use them as he did, or the appellants to take them from him. Under such circumstances, I think the plaintiff had a right to resort to a court of equity to have the notes canceled, not only to avoid a multiplicity of suits, hut to preserve the evidence establishing that they were not legal instruments in the hands of the defendants.

The weight of modern authority, as I read the decisions, supports the doctrine that a suit may be maintained in equity, under facts similar to those here involved, for the cancellation of written instruments obtained by fraud. The court exercises its equitable powers under such circumstances, for the purpose of affording relief against an invalid executory contract in possession of another, where the invalidity is not apparent upon the instrument itself, and where the defense may be nullified by intentional delay to sue until the evidence in support of it is lost. (Fuller v. Percival, 126 Mass. 381.) In Hamilton v. Cummings (1 Johns. Ch. 517) Chancellor Kent, after an examination of the English cases bearing upon the subject, said he was of the opinion that equitable jurisdiction ought to be upheld whether the instrument were or were not void at law, and whether it be void from material appearing upon its face, or from proof taken in the cause, and he added: “ Perhaps the cases may all be reconciled on the general principle that the exercise of this power is to be regulated by sound discretion, as the circumstances of the individual case may dictate; and that the resort to equity, to be sustained, must be expedient, either because the instrument is liable to abuse from its negotiable nature, or because the defense not arising on its face may be difficult, or uncertain at law, or from some other special circumstances peculiar to the case, and rendering a resort here highly proper and clear of all suspicion of any design to promote expense and.litigation.”

The plaintiff is entitled to have the notes returned to it, and for that purpose is not obliged to wait until an action at law has been brought against it, when the evidence that the appellants took their notes with notice of Garifalos’ fraud may have been lost; nor is it obliged to take the risk of having its credit impaired by having the notes negotiated, or of defending a multiplicity of actions.

I am of the opinion the judgment is right and should be affirmed, with costs.

Laughlin and Smith, JJ., concurred; Ingraham, P. J., and Dowling, J., dissented.

Ingraham, P. J. (dissenting):

The application of the plaintiff to equity for relief is based upon the allegation that the plaintiff issued fifteen promissory notes to the defendant Garifalos which were obtained by Garifalos by fraud; that Garifalos had transferred one or more of the said notes to each of the individual defendants, who were not bona fide holders of the said notes for value: These notes were all issued in the month of March, 1914, and were payable four or five months after date, and the action does not seem to have been commenced until October, 1914, after all the notes had become due. There .was, therefore, no necessity for equitable relief to prevent the holders from negotiating the notes to bona fide holders for value.

There is no dispute but what the facts alleged in the complaint if true would be a complete defense to an action to recover upon either of the notes if the notes had not been negotiated to bona fide holders for value before maturity, and, if they had been so negotiated, a holder would be entitled to recover notwithstanding the fraud by which Garifalos had obtained the notes. Thus, there had vested in the several transferees of the notes a legal cause of action against the maker of the notes, to which the holders had a right to a trial by jury, and equity has never taken cognizance of such an action unless there was a danger by a transfer of the note which would create a cause of action on it or some fact existing which would prevent the maker of the instrument from maintaining the defense when the instrument was sued on. There is no allegation here, nor was there any proof, that there was any danger of the plaintiff’s losing any of the evidence which would sustain a defense, and actions had been commenced on some of the notes against the plaintiff in which the facts here alleged were available as a defense.

There is no justification for .an appeal to equity on the ground that the action is necessary to avoid a multiplicity of actions. That rule only applies where there is a multiplicity of actions between the parties. As was said in O’Brien v. Fitzgerald (6 App. Div. 509; affd., on opinion below, 150 N. Y. 572): The allegation that a multiplicity of suits will be required in case the plaintiffs have to sue each defendant, joining with him only those who aided him in the wrongful acts which would make them liable, hardly brings the case within one of the class where the court will intervene to prevent a multiplicity of actions against one individual. Here the multiplicity of actions is against a multitude of people, rather than against one person which equity in some cases will enjoin. A man having 100 promissory notes made by different individuals might as well ask to sue all of them in one action, because if he had to bring the 100 actions against the 100 individuals he would be required to bring and maintain a multiplicity of suits.”

My brother McLaughlin, in sustaining this judgment, says: “ The existence of a defense, the risk of losing evidence, or the apprehension of a multiplicity of suits, may not, any one of them separately, be a sufficient ground for restraining suits at law upon, or decreeing the cancellation of written instruments, especially where proof of extrinsic facts is not necessary to establish the defense, yet when all these elements are combined and extrinsic proof is necessary to establish the defense, a proper case for equitable relief is established.’' It seems to be thus conceded that no one of these facts alone would justify the interposition of a court of equity, and how a combination of bad causes of action can make a good cause of action I do not understand. As aforestated, there is no proof of any danger of losing any evidence. The facts upon which this action is based are a complete defense to the notes if properly pleaded in an action brought to enforce them, and, therefore, I think the judgment should be reversed and the complaint dismissed.

Dowling, J., concurred.

Judgment affirmed, with costs.  